/-(award 

1    le  Ccnfe  3  r 


GIFT  OF 
Prof.     Yoshi  S.   Kuno 


THE  GOVERNMENT 
OF  THE  UNITED   STATES 


BY  THE  SAME  AUTHOR 


THE   GOVERNMENT   OF 
AMERICAN  CITIES 

THE   GOVERNMENT   OF 
EUROPEAN   CITIES 

PRINCIPLES  AND  METHODS  OF 
MUNICIPAL  ADMINISTRATION 


THE  GOVERNMENT 


OF 


THE  UNITED  STATES 


NATIONAL,  STATE,  AND  LOCAL 


BY 


WILLIAM   BENNETT   MUNRO,  PH.D.,   LL.B. 

PKOFESSOR    OF   MUNICIPAL   GOVERNMENT 
IN   HARVARD   UNIVERSITY 


THE  MACMILLAN   COMPANY 

1919 

All  rights  reserved 


COPYRIGHT,  1919, 
BY  THE  MACMILLAN  COMPANY. 


Set  up  and  electrotyped.    Published  February,  1919. 


Clft 
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NortoooU  ^teas 

J.  S.  Gushing  Co.  —Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


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Samuel  TKttalfeer  /IDcCall 

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PREFACE 

MY  aim  in  the  preparation  of  this  book  has  been  to  provide 
a  general  survey  of  the  principles  and  practice  of  American 
government  as  exemplified  in  the  nation,  in  the  states,  and 
in  the  several  areas  of  local  administration.  I  have  en- 
deavored, so  far  as  the  limits  of  a  single  volume  would  per- 
mit, not  only  to  explain  the  form  and  functions  of  the  Ameri- 
can political  system,  but  to  indicate  the  origin  and  purpose 
of  the  various  institutions,  to  show  how  they  have  been  de- 
veloped by  law  or  by  usage,  to  discuss  their  present-day 
workings,  merits,  and  defects,  and  to  contrast  the  political 
institutions  of  the  United  States  with  analogous  institutions 
in  other  lands.  Surprisingly  little  has  been  written  on  the 
history  of  American  political  institutions,  and  not  much  more 
on  the  principles  which  these  institutions  are  assumed  to 
exemplify.  Text-books,  in  the  main,  have  emphasized  the 
practical  workings  of  governmental  agencies  to  the  neglect 
of  these  other  things. 

The  plan,  scope,  content,  and  temper  of  this  book  are  in 
large  measure  the  outgrowth  of  my  experience  as  a  teacher. 
My  students,  by  the  drift  of  their  questions  and  discussions, 
have  moulded  my  ideas  of  what  a  text-book  ought  to  contain. 
This  book  is  theirs  as  much  as  it  is  mine.  That  fact  may 
help  to  explain  why  some  features  of  American  government 
are  dilated  upon  at  considerable  length,  while  others  are  left 
as  self-evident  propositions  to  the  perception  of  the  reader. 
It  explains,  moreover,  why  the  same  problem  is  occasionally 
discussed  from  different  angles,  even  though  this  has  in- 
volved some  degree  of  repetition.  And  if  the  general  tone 
of  the  book  betrays  an  optimist,  my  sufficient  answer  is  that 
no  man  can  be  for  many  years  associated  with  the  American 
undergraduate  and  remain  anything  else. 

I  am  under  obligations  to  Professor  John  A.  Fairlie  of  the 
University  of  Illinois,  to  Professor  A.  N.  Holcombe  of  Har- 

vii 


viii  PREFACE 

vard  University,  and  to  Congressman  F.  W.  Dallinger  of 
Cambridge  for  many  helpful  suggestions.  Miss  Alice  Holden 
of  Wellesley  College  has  given  me  much-appreciated  assist- 
ance in  reading  the  proofs  and  in  preparing  the  index. 

WILLIAM  BENNETT  MUNRO. 

January  5,  1919. 


CONTENTS 


CHAPTER/ 

VI. 


\/III. 


V. 

VI. 

wJu—  VII. 
<-\-VIII. 

IX. 


l/Xl. 


XIV. 
XV. 
XVI. 


XXI. 
XXII. 

XXIII. 


XXIV. 
^  XXV. 

XXVI. 

XXVII. 

XXVIII. 


PAGE 

ENGLISH  AND  COLONIAL  ORIGINS        ....  1 

PRELIMINARIES  OF  NATIONAL  GOVERNMENT       .         .  14 

THE  CONSTITUTION  AND  ITS  MAKERS         ...  26 

"THE  SUPREME  LAW  OF  THE  LAND"          ...  44 

How  THE  CONSTITUTION  HAS  DEVELOPED          .         .  57 

THE  CITIZEN  AND  His  RIGHTS  .....  71 

THE  PRESIDENT  ........  88 

PRESIDENTIAL  POWERS  AND  FUNCTIONS   "  .         .         .  105 

THE  CABINET  AND  NATIONAL  ADMINISTRATION           .  126 

THE  SENATE  :    ITS  ORGANIZATION       ....  146. 

THE  SENATE  :    ITS  FUNCTIONS    .....  162 

THE  HOUSE  OF  REPRESENTATIVES:   ITS  COMPOSITION  176 
THE    HOUSE    OF    REPRESENTATIVES:     ORGANIZATION 

AND  PROCEDURE   .......  191 

THE  GENERAL  POWERS  OF  CONGRESS         .         .         .  208 

THE  TAXING  POWER  .......  219 

THE  BORROWING  POWER,  THE  NATIONAL  DEBT,  AND 

THE  NATIONAL  BANKING  SYSTEM          .         .         .  233 

THE  POWER  TO  REGULATE  COMMERCE       .         .         .  246 

THE  WAR  POWERS      .         .         .         .         .         .         .  265 

MISCELLANEOUS  POWERS  OF  CONGRESS      .         .         .  277 
CONSTITUTIONAL   LIMITATIONS    ON    THE   POWERS    OF 

CONGRESS      .         .         ......  288 

THE  WORKINGS  OF  CONGRESSIONAL  GOVERNMENT     .  299 
POLITICAL     PARTIES     IN     NATIONAL     GOVERNMENT  : 

THEIR  HISTORY  AND  FUNCTIONS           .         .         .  312 
POLITICAL     PARTIES     IN     NATIONAL     GOVERNMENT: 

THEIR  ORGANIZATION  AND  METHODS  .         .         .  330 

THE  JUDICIAL  POWER  OF  THE  UNITED  STATES  .         .  342 

THE  SUPREME  COURT  AND  THE  SUBORDINATE  COURTS  357 

THE  GOVERNMENT  OF  TERRITORIES    ....  372 

THE  PLACE  OF  THE  STATES  IN  THE  NATION      .         .  389 

THE  STATE  CONSTITUTIONS          .....  404 
ix 


CONTENTS 


>     CHAPTER 

XXIX. 

^xxx. 

XXXI. 

THE  STATE  LEGISLATURE    ..... 
THE  GOVERNOR  ....... 
STATE  ADMINISTRATION        .         .         . 

PAGE 

.     415 
.     431 
.     445 

^XIXXII. 

STATE  FINANCE   

.     460 

LXXXIII. 

STATE  PARTIES  AND  PRACTICAL  POLITICS  . 

.     473 

XXXIV. 
XXXV. 

THE  STATE  COURTS     .         .         .    "    . 
DIRECT  LEGISLATION  AND  THE  RECALL 

.     489 
.     501 

XXXVI. 

THE  RECONSTRUCTION  OF  STATE  GOVERNMENT 

.     522 

XXXVII. 
XXXVIII. 

THE  HISTORY  OF  LOCAL  GOVERNMENT 

.     535 
546 

XXXIX. 

TOWNS,  TOWNSHIPS,  AND  VILLAGES   . 

.     560 

XL. 

THE  AMERICAN  CITY  

.     572 

XLI. 

MUNICIPAL  ORGANIZATION  

.     588 

XLII. 

MUNICIPAL  ADMINISTRATION        .         .         ...... 

.     602 

XLIII. 
INDEX 

COMMISSION  AND  CITY  MANAGER  GOVERNMENT 

.     619 
637 

THE   GOVERNMENT 
OF  THE  UNITED   STATES 


THE   GOVERNMENT   OF  THE 
UNITED   STATES 

CHAPTER  I 

ENGLISH   AND   COLONIAL  ORIGINS 

IN  the  political  history  of  the  American  people  the  most  The  in- 
notable  achievement  has  been  the  welding  of  many  common-  ^ 
wealths  into  one  great  federal  state.     For  this  accomplish-  united 
ment  the  main  credit  has  usually  been  given  to  the  group  states  to 

£    C£.       n  / '    ,  to,       ,,  %    English  and 

of  fifty-five  men  who  sweltered  through  the  summer  of  colonial 
1787  in  the  convention  hall  at  Philadelphia  and  forged  at  experience, 
white  heat  what  Gladstone  generously  called  "  the  most 
wonderful  work  ever  struck  off  at  a  given  time  by  the 
brain  and  purpose  of  man."  But  the  thirteen  colonies 
which  they  welded  into  an  enduring  union  had  already 
been  brought  by  more  than  one  hundred  and  fifty  years 
of  historical  development  into  a  close  political  kinship. 
That  was  what  made  any  sort  of  organic  union  possible. 
The  American  Revolution  was  merely  the  culmination  of 
colonial  growth,  and  the  constitution  was  the  logical  out- 
come of  conditions  which  the  Revolution  brought  into 
being. 

In  one  sense  the  American  Revolution  was  not  a  revolu- 
tion at  all.     It  was  not  a  cataclysm  like  the  French  Revo- 
lution of  the  eighteenth  century;    it  did  not  sweep  away 
fundamental  institutions,  or  transform  political  ideals,  or 
shift  the  weight  of  political  power  from  one  class  among 
the  people  to  another.     It  merely  changed  the  resting-place  The  con- 
of  sovereignty.     The  sovereign  power  had  hitherto  been  ^nierican 
vested  in  the  crown.     It  had  been  exercised  by  the  grant  political 
of  charters  or  through  instructions  sent  by  the  home  authori-  hlstory- 
ties  to  the  colonial  governors.     Henceforth  it  was  to  vest 

B  1 


2  THE  GOVERNMENT  OF  THE  UNITED  STATES 

in  the  people  of  the  thirteen  commonwealths,  to  be  exer- 
cised by  them  through  their  own  constitutions  and  laws. 
In  the  continuity  of  American  political  institutions,  there- 
fore, the  Revolution  marks  a  break  of  no  great  violence. 
It  guided  political  evolution  into  new  channels,  and  set  the 
political  ideals  of  the  New  World  more  clearly  before  its 
people. 

American  constitutional  history,  therefore,  does  not 
begin  with  the  Declaration  of  Independence  in  1776  nor 
yet  with  the  founding  of  the  first  seaboard  colonies  more 
than  a  century  and  a  half  previously.  Its  beginnings  go  back 
to  the  days  of  the  Saxon  folk-mote  and  the  Curia  Regis 
of  Norman  England.  The  principles  of  civil  liberty  as 
established  by  Magna  Carta,  the  Bill  of  Rights,  by  the 
Habeas  Corpus  Acts,  and  by  the  whole  fabric  of  the  Common 
Law  were  the  patrimony  of  the  American  colonists  from  the 
outset.  By  migrating  to  America  they  lost  none  of  the 
rights  and  liberties  which  they  had  possessed  at  home. 
They  did  not  therefore  create  anew  but  brought  with  them 
the  political  traditions  upon  which  a  free  government  could 
be  set  up.  The  right  to  a  share  in  the  making  of  laws,  the 
right  of  self-taxation,  the  right  to  trial  by  jury,  the  right  of 
petition,  the  right  of  all  men  to  be  dealt  with  equally  before 
the  law  —  these  rights  did  not  originate  in  America.  They 
are  the  heritage  of  the  whole  Anglo-Saxon  race.  The 
American  Revolution  preserved  them  at  a  time  when  they 
were  in  danger  of  being  trodden  under  foot  and  the  Ameri- 
can constitutions,  both  state  and  national,  merely  asserted 
them  anew. 

Unity  of  The  thirteen  colonies  which  formed  the  nucleus  of  the 

colonies  United  States  were  the  outgrowth  of  small  communities 
planted  along  the  Atlantic  seaboard  during  the  course  of 
the  seventeenth  century.1  When  the  first  settlers  came, 
it  was  not  with  the  idea  of  founding  new  states  ;  hence  they 
were  organized  as  trading  companies  with  charters  similar 
to  those  given  to  such  corporations  in  other  parts  of  the 
world.  But  the  colonists  soon  found  that  something  more 
than  this  was  necessary.  Hence  the  company  charters 

1  For  a  narrative  of  this  political  development,  see  Professor  Edward 
Channing,  History  of  the  United  States,  Vols.  i-ii  (N.  Y.,  1905-1908). 


ENGLISH  AND  COLONIAL  ORIGINS  3 

gave  way  in  some  cases  to  colony  charters ;  or  where  no 
such  charters  were  forthcoming,  the  people  went  ahead 
without  the  formal  authority,  establishing  their  own  local 
and  general  governments.  But  the  lines  of  this  political 
development  were  not  everywhere  parallel.  Differences 
in  the  occupations  of  the  people  and  to  some  extent  in  the 
temper  of  the  colonists  themselves  led  to  a  departure  from 
uniformity  throughout  the  various  communities.  These 
political  differences  were  not,  however,  of  great  importance. 
If  the  general  and  local  governments  of  Virginia  and  Massa- 
chusetts, for  example,  appear  in  colonial  days  to  have  been 
quite  dissimilar,  that  is  only  because  contrasts  always 
appear  more  sharply  than  similarities  when  one  takes  only 
a  superficial  view  of  two  governments.  In  their  political 
ideals  and  institutions  all  the  colonies  were  fundamentally 
alike ;  the  differences  among  them  are  of  slight  account 
when  weighed  in  the  balance  with  the  broad  and  deep 
resemblances.  All  the  colonies  had  been  founded  by  Eng- 
lishmen or  had  passed  under  English  control.  The  popula- 
tion everywhere  was  overwhelmingly  of  one  religious  faith 
and  nearly  all  claimed  the  English  language  as  their  mother 
tongue.  The  common  law  of  England  formed  the  basis 
of  the  legal  system  everywhere.  There  was  a  substantial 
unity  in  language,  in  religion,  and  in  law,  and  these  in  all 
ages  are  the  great  bonds  which  have  drawn  neighboring 
communities  together. 

It  was  because  of  this  unity  in  race,  language,  religion,  The  basis 
and  law  that  there  was  a  substantial  similarity  in  political  ^^ 
institutions.1     To  begin  with,  the  basis  of  colonial  govern-  —royal 
ment  was  in  each  colony  the  same.     Alike  in  all  of  them  it  8UPremacy- 
was   the   supremacy   of   the    crown.     Explorers   went    out 
under  royal  auspices ;    they  took  possession  of  new  lands 
in  the  sovereign's  name ;   the  territories  which  they  gained 
became  royal  property.     The  crown  gave  the  first  company 
charters ;    it  also  gave  the  colonial  charters  which  replaced 
these  earlier  grants.     When  a  colony  had  no  charter,  its 

1  The  best  general  outlines  of  political  organization  in  the  colonies  as 
a  whole  are  those  given  in  C.  M.  Andrews,  Colonial  Self-Government,  1652- 
1689  (N.  Y.,  1904),  and  in  Evarts  B.  Greene,  Provincial  America,  1690- 
1740  (N.  Y.,  1905). 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


Decay  of 
this  basis 
in  England. 


The  forms 
of  colonial 
government 
—  charter, 
royal,  and 
proprietary. 


government  existed  only  by  royal  recognition.  In  theory, 
therefore,  the  crown  was  supreme  as  respects  the  colonies, 
and  in  America  this  doctrine  lived  on  and  was  recognized 
until  the  Revolution.  Not  until  the  closing  years  of  the 
colonial  period  did  parliament  ever  assume  to  interfere 
with  the  forms  of  colonial  government,  and  at  no  time  did 
the  colonists  concede  its  claim  to  do  so. 

But  in  England  the  doctrine  of  royal  supremacy  lost 
ground.  Parliament  was  able  to  bring  the  crown  under 
its  influence,  and  though  it  left  the  royal  prerogative  in 
outer  form  unimpaired,  parliament  steadily  arrogated  the 
real  power  to  itself.  At  the  middle  of  the  eighteenth  cen- 
tury, accordingly,  Englishmen  on  both  sides  of  the  Atlantic 
were  living  under  the  same  sovereign  but  under  different 
notions  as  to  the  true  role  of  the  crown  in  matters  of  govern- 
ment. In  England  the  virtual  supremacy  of  parliament 
was  established  and  recognized ;  in  America  the  colonists 
knew  and  admitted  no  sovereignty  but  that  of  the  crown. 
This  point  should  be  made  clear,  otherwise  the  attitude 
of  the  colonists  in  the  days  before  the  Revolution  is  not 
easy  to  understand.  The  thirteen  colonies  were  alike  in 
their  subjection  to  the  crown;  they  were  also  alike  in  their 
disregard  of  the  fact  that  in  the  home  land  the  old  royal 
powers  had  passed  under  the  sway  of  parliament. 

It  has  been  customary  to  divide  the  thirteen  colonies 
into  three  groups,  namely,  charter,  royal,  and  proprietary. 
Connecticut  and  Rhode  Island  had  charters  and  elected 
their  own  governors.  Massachusetts  after  1691  had  a 
charter  with  an  appointive  governor.1  Pennsylvania,  Dela- 
ware, and  Maryland  belonged  to  proprietors,  and  these 
proprietors  appointed  the  governors ;  the  remaining  seven 
colonies  had  neither  charters  nor  proprietors,  hence  they 
were  directly  under  the  control  of  the  crown,  and  by  the 
crown  their  governors  were  appointed.  But  this  differentia- 
tion in  colonial  status  is  not  of  any  great,  importance,  for 
all  of  the  colonies  were  under  relatively  the  same  degree 
of  control  by  the  crown  and  its  officers,  and  all  of  them, 
whether  with  charters  or  without,  had  much  the  same  degree 

1  These  various  charters  are  printed  in  William  MacDonald,  Select 
Charters  Illustrative  of  American  History,  1606-1775  (N.  Y.,  1899). 


ENGLISH  AND  COLONIAL  ORIGINS  5 

of  freedom  in  managing  their  own  affairs.  For  the  present- 
day  student  of  colonial  institutions  it  would  have  greatly 
simplified  matters  if  the  English  crown,  in  early  days,  had 
made  all  these  things  outwardly  uniform,  —  if  it  had  given 
all  the  colonies  the  same  charter  or  given  them  all  no  char- 
ters at  all.  But  that  has  never  been  the  English  way  of 
doing  things.  The  fact  is  that  at  no  time  was  there  any 
serious  effort  to  make  clear,  beyond  any  chance  of  future 
dispute,  just  what  autonomy  a  colony  was  to  have  and 
what  final  powers  it  was  not  to  have.  The  general  attitude 
on  both  sides,  until  just  before  the  Revolution,  was  to  refrain 
from  any  quarrel  over  theories  or  fundamentals  of  govern- 
ment, to  deal  with  each  problem  as  it  arose,  one  or  other  side 
giving  way  as  the  circumstances  seemed  to  dictate.  This, 
indeed,  has  been  a  characteristic  of  English  colonial  policy  at 
all  stages  of  its  development  and  in  all  parts  of  the  world. 

Through  what  channels  did  the  crown  exercise  its  super-  HOW 
vision  over  the  American  colonies?  The  agencies  of  con- 
trol  were  not  the  same  at  all  periods,  but  broadly  speaking  the  colonies, 
it  was  the  practice  to  leave  to  the  Board  of  Trade  in  England 
all  matters  relating  to  trade  with  the  colonies,  while  politi- 
cal questions,  including  the  making  of  appointments,  were 
placed  in  the  hands  of  the  Privy  Council.  This  latter 
body  acted,  as  a  rule,  on  the  advice  of  a  standing  committee 
known  as  the  Committee  for  Plantation  Affairs.  But  the 
jurisdiction  of  the  Board  of  Trade  was  never  strictly  defined, 
and  the  royal  ministers,  either  directly  or  through  the 
board,  frequently  interfered.  All  instructions  went  directly 
to  the  colonial  governors  in  the  name  of  the  crown.  As  for 
parliament,  it  had  no  way  of  controlling  colonial  affairs 
except  in  so  far  as  it  could  influence  the  Lords  of  Trade  • 
or  the  Privy  Council.  Acts  of  parliament  did  not  apply 
to  the  colonies  unless  they  made  express  stipulation  to  that  . 
effect,  and  in  very  few  was  such  provision  made  until  after 
1760.  Then,  when  parliament  began  its  practice  of  enact- 
ing special  revenue  laws  for  the  colonies,  the  question  of 
its  right  to  do  so  was  openly  denied  by  the  colonists.  On 
the  whole  the  system  of  home  control  was  not  well  organized 
or  efficient.  There  was  always  room  for  divided  counsels, 
inaction,  and  delay.  Hence  the  colonies,  often  at  variance 


6 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


Framework 
of  colonial 
govern- 
ment: the 
governor. 


The  colo- 
nial legisla- 
ture. 


with  one  another,  were  let  alone  when  a  strongly  centralized 
colonial  office  in  London  might  have  interfered  to  good 
advantage.  When  the  home  authorities  did  finally  show 
vigor  and  determination,  it  was  in  behalf  of  a  cause  which 
united  the  colonies  in  their  opposition. 

Each  of  the  thirteen  colonies  had  a  governor  as  its  chief 
executive;  in  eight  of  them  this  official  was  appointed  by 
the  crown,  in  the  others  he  was  either  elected  by  the  people 
or  named  (as  in  Pennsylvania)  by  the  proprietor  of  the 
colony.1  The  position  of  the  colonial  governor  was  some- 
thing like  that  of  the  king  at  home;  he  summoned  the 
colonial  parliament  or  assembly  and  could  dissolve  it  when 
he  willed.  In  some  respects  his  authority  was  far  more 
extensive  than  that  of  the  crown,  for  he  had  the  right  to 
veto  the  assembly's  acts,  while  in  England  the  crown  had 
lost  this  power  in  relation  to  acts  of  parliament.  The  ap- 
pointing authority  of  the  colonial  governor  was  also  extensive, 
and  he  was  the  head  of  the  militia  in  each  of  the  colonies. 
The  governors  were  of  various  types,  but  occasionally  of 
high  caliber.  Their  work  was  not  easy ;  on  the  one  hand 
they  were  supposed  to  carry  out  instructions  from  London 
issued  by  men  who  frequently  knew  next  to  nothing  about 
colonial  conditions ;  on  the  other  hand  they  were  the  pivots 
of  local  administration,  responsible  for  the  efficient  manage- 
ment of  affairs  yet  dependent  upon  the  colonial  legislatures 
for  money  and  support.  The  colonial  governor  had  to 
serve  two  masters,  one  who  gave  him  his  appointment  and 
the  other  who  gave  him  his  pay.  From  the  nature  of 
things  he  could  rarely  serve  both  well. 

In  each  colony  there  was  also  a  legislature,  usually  com- 
posed of  two  branches.  The  lower  chamber  was  in  all  cases 
elected  by  the  people,  but  each  colony  had  its  own  quali- 
fications for  voting  and  in  most  of  them  these  requirements 
were  strict.  The  ownership  of  property  was  usually  required 
as  a  prerequisite  for  voting,  and  often  religious  tests  were 
imposed  as  well.2  The  members  of  this  elective  chamber 

1  A  discussion  of  his  powers  may  be  found  in  E.  B.  Greene,  Provincial 
Governor  in  the  English  Colonies  of  North  America  (N.  Y.,  1898). 

2  For  a  full  survey  see  A.  E.  McKinley,  The  Suffrage  Franchise  in  the 
Thirteen  English  Colonies  (Philadelphia,  1905). 


ENGLISH  AND  COLONIAL  ORIGINS  7 

were  chosen  by  towns  in  New  England  or  by  the  counties 
in  the  southern  colonies,  usually  for  short  terms.  The  upper 
chambers  were  primarily  executive  bodies ;  in  most  cases  the 
members  were  named  either  by  the  royal  governor  or  by 
the  proprietor.  In  addition  to  being  the  upper  house  of  the 
colonial  legislature,  this  body  was  also,  in  a  few  colonies, 
the  governor's  council,  advising  him  and  sometimes  con- 
trolling his  appointments.  These  colonial  legislatures  passed 
laws  and  claimed  the  sole  right  to  legislate  on  any  matter 
which  concerned  the  colony's  internal  affairs.  They  alone 
could  authorize  the  levy  of  taxes,  and  this  control  of  the 
purse  gave  the  colonial  legislatures  an  indirect  but  never- 
theless a  strong  hold  upon  the  course  of  executive  policy. 
In  most  of  the  colonies,  however,  all  legislation  was  subject 
to  the  governor's  veto  and  subject  also  to  disallowance  by 
the  English  authorities  if  they  saw  fit.  The  powers  of  these 
colonial  legislatures  were  growing  steadily  when  the  eve 
of  the  Revolution  approached.1 

In  all  the  colonies  the  groundwork  of  jurisprudence  was  Laws 
the  common  law.     It  was  not  established  in  the  colonies  fallo 
by   any   definite   enactment,   but   like   other  Anglo-Saxon  ance  of 
institutions  it  migrated  with  the  flag.     In  addition,  the  laws* 
colonial  legislatures   (subject  to  the  governor's  veto   and 
to  the  power  of  disallowance  by  the  home  authorities)  had 
the  right  to  make  laws  so  far  as  these  were  not  repugnant 
to  the  laws  of  England.     In  recognition  of  the  fact  that 
new    countries   present   new   legislative  requirements,  the 
colonial  assemblies  were  given  a  fair  degree  of  freedom  in 
law-making;    but   governor's   vetoes  were   not   rare,  and 
colonial   laws   were    occasionally    disallowed   when    copies 
reached  the  law  officers  of  the  crown  of  England.     The 
colonists   thus   became   familiar   with   two   political   ideas 
which  have  continued  orthodox  in  America  to  the  present 
day,  first,  the  idea  of  an  executive  veto  and,  second,  the 
idea  that  a  law  may  be  invalid  because  of  its  repugnance 
to  usages  or  statutes  more  fundamental  than  the  law  itself ; 
in  other  words  the  conception  of  unconstitutionality. 

In  one  great  field  the  colonial  legislatures  were  virtually 

1  B.  B.  Russell,  The  Review  of  American  Colonial  Legislation  by  the 
King  in  Council  (N.  Y.,  1915). 


8 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

control  of 
taxation. 


The  judi- 
ciary. 


Local 
govern- 
ment. 


supreme,  namely,  in  the  matter  of  raising  revenue.  From 
time  to  time  they  formally  declared  their  exclusive  right 
to  determine  what  taxes  should  be  levied,  and  on  the  whole 
they  managed  to  make  good  their  claims  in  this  domain  of 
government.  The  legislatures  also  controlled  the  appropria- 
tions, but  there  were  numerous  disputes  as  to  whether 
this  control  gave  the  legislatures  full  power  to  fix  all  executive 
and  judicial  salaries,  including  the  salary  of  the  governor 
himself.  As  a  rule,  however,  the  colonial  legislatures  had 
their  way  on  this  point  as  well. 

As  for  the  judicial  organization  some  differences  existed 
among  the  several  colonies,  but  here  again  the  general 
lines  were  uniform.  All  of  the  colonies  had  local  courts, 
usually  presided  over  by  justices  of  the  peace  who  were 
appointed  by  the  governor.  Above  these  came,  in  most 
cases,  the  courts  of  quarter  sessions  made  up  of  the  justices 
in  each  county.  And  finally,  each  colony  had  a  higher 
court  which  in  some  cases  consisted  of  the  governor  and  his 
council  but  which  in  others  was  a  separate  body  made  up 
of  regularly  appointed  judges.  From  these  highest  colonial 
courts  appeals  might  be  carried  to  England  where  they  were 
decided  by  the  Privy  Council.  The  Privy  Council  was  not 
a  court  in  the  ordinary  sense ;  its  right  to  confirm  or  quash 
the  judgments  of  the  colonial  courts  was  merely  one  phase 
of  its  authority  to  advise  the  king,  who  in  turn  was  the 
final  arbiter  in  all  matters  affecting  the  colonies.  Until 
the  years  preceding  the  Revolution  appeals  to  the  Privy 
Council  were  not  frequent,  but  they  steadily  became  more 
common  after  1750.  All  of  the  colonial  courts  followed 
English  judicial  procedure;  the  right  of  trial  by  jury  and 
the  other  privileges  which  Blackstone  calls  "the  liberties 
of  Englishmen'7  were  everywhere  given  full  recognition. 
The  colonists  were  thus  by  actual  experience  well  schooled 
in  the  doctrine  that  men  had  inalienable  rights. 

It  was  in  the  field  of  local  government  that  the  greatest 
differences  in  the  form  if  not  in  the  spirit  of  colonial  govern- 
ment appeared.1  In  all  the  New  England  colonies  the 
unit  of  local  administration  was  the  town,  with  its  town 

1  A  further  discussion  of  local  government  in  colonial  times  is  included 
below,  ch.  xxxvii. 


ENGLISH  AND  COLONIAL  ORIGINS  9 

meeting  of  all  the  citizens  and  its  elective  local  officers. 
The  town  raised  its  own  taxes  and  spent  them,  made  its 
own  by-laws,  and  sent  its  representative  each  year  to  the 
colonial  legislature.  It  was  a  miniature  republic,  rarely 
interfered  with  from  above.  This  splendid  and  enduring 
type  of  local  government  was  the  joint  product  of  racial 
temperament  and  geographical  environment,  and  great 
importance  should  be  attached  to  the  training  in  self-gov- 
ernment which  the  men  of  colonial  New  England  secured 
through  a  simple  and  democratic  plan  of  handling  their  . 
neighborhood  affairs.  It  had  a  considerable  part  in  deter- 
mining the  common  attitude  on  public  questions  in  later 
days.  -The  southern  colonies,  on  the  other  hand,  established 
the  county  as  their  chief  unit  of  local  administration. 
County  officers  were  appointed  by  the  governor,  and  there 
was  no  general  meeting  of  all  the  inhabitants  to  vote  the 
taxes  or  to  determine  matters  of  local  policy.  Finally,  in 
the  middle  colonies,  particularly  in  New  York  and  Penn- 
sylvania, there  was  a  mixed  type  of  local  government,  a 
combination  of  the  town  and  county  systems,  which  bridged 
the  gap  between  the  extremes  of  New  England  and  the 
South.  Yet  the  differences  in  the  frame  of  local  govern- 
ment throughout  the  thirteen  colonies  were  not  greater 
than  those  which  one  can  find  among  the  several  states 
to-day.  They  did  not  impair  the  political  homogeneity 
of  the  people.  The  principle  of  local  autonomy  was  every- 
where strongly  upheld  and  asserted. 

With  such  general  approach  to  uniformity  in  race,  reli-  Early 
gion,  language,  and  law,  with  such  marked  similarities  in  att^mpts 
political    organization    and    development,    with    common  the  colonies, 
problems  arising  from  the  pressure  of  outside  enemies,  it 
might  be  expected  that  the  various  colonies  would  steadily 
draw  more  closely  together  and  develop  in  time  some  form 
of  federal  union.     There  were  some  steps  in  that  direction. 
As  early  as  1643  the  four  New  England  colonies  of  Plym- 
outh, Massachusetts  Bay,  Connecticut,    and  New  Haven 
united  in  a  league  of  friendship,  particularly  for  mutual 
support    against    Indian    attacks.     It    was    arranged    that 
each  of  these  colonies  should  send  two  delegates  to  a  joint 
conference  each  year.     For  many  years  this  New  England 


10         THE  GOVERNMENT  OF  THE  UNITED  STATES 


(1)  The 
New 
England 
Confedera- 
tion of 
1643. 


(2)  Penn's 
suggestion, 
1698. 


(3)  The 
Albany 
Congress, 
1754. 


confederation  proved  a  useful  agent  of  inter-colonial  ac- 
tion, but  it  was  at  best  a  weak  and  incomplete  arrange- 
ment. There  was,  moreover,  a  great  deal  of  jealousy 
among  its  four  members,  and  its  existence  ceased  after 
the  Indian  dangers,  against  which  it  had  been  organized, 
had  passed  away. 

From  time  to  time  during  the  next  hundred  years  other 
proposals  for  confederation  were  made.  William  Penn 
made  such  a  suggestion  in  1696,  and  at  various  dates  confer- 
ences representing  several  colonies  were  called  to  discuss 
the  possibilities.  But  the  clash  of  diverse  local  interests 
always  proved  to  be  a  stumbling-block,  and  it  required  a 
serious  common  danger  to  impress  on  all  the  colonies  their 
essential  unity  and  their  need  of  cooperation.  Something 
of  this  sort  came  into  view  when  the  French  wars  demon- 
strated to  all  the  New  England  and  middle  colonies  their 
weakness  as  isolated  units  in  the  face  of  an  aggressive  and 
united  enemy. 

At  the  suggestion  of  the  Lords  of  Trade  a  congress  was 
called  at  Albany  in  1754  with  a  view  to  forming  a  confedera- 
tion for  mutual  defence,  and  especially  to  devise  a  plan  for 
keeping  the  Iroquois  from  joining  with  the  French.  Seven 
colonies  were  represented ;  the  southern  ones  did  not 
send  delegates,  as  the  immediate  danger  seemed  to  be  far 
from  their  own  doors.  Benjamin  Franklin  brought  forward 
a  plan  of  union,  and  the  congress,  after  making  some  changes, 
adopted  it  unanimously.  Franklin's  plan,  commonly  known 
as  the  Albany  Plan  of  Union,  contemplated  a  conference 
or  congress  made  up  of  one  delegate  from  each  colony, 
this  conference  to  determine  the  means  of  common  defence, 
the  number  of  troops  to  be  supplied  by  each  colony,  and 
the  amount  of  money  to  be  contributed  by  each.  The 
crown  was  to  appoint  a  president-general,  who  should  com- 
mand the  united  forces  and  have  the  spending  of  the  money 
so  raised.  But  although  the  delegates  at  Albany  approved 
this  plan,  it  was  rejected  by  the  several  colonies  when  it 
went  before  them  for  approval.  The  Albany  Plan,  accord- 
ingly, came  to  naught.  But  it  did  have  its  influence  in 
paving  the  way  for  the  first  Continental  Congress  of  the 
Revolutionary  War. 


ENGLISH  AND  COLONIAL  ORIGINS  11 

One  further  meeting  of  colonial  delegates  before  the  (4)  The 
actual  outbreak  deserves  a  word,  namely,  the  so-called 
Stamp-Act  Congress.  In  1765  the  representatives  of  nine  1765. 
colonies  met  at  New  York  to  draw  up  petitions  to  the  home 
government  on  colonial  grievances,  particularly  with  refer- 
ence to  the  Stamp  Act.  No  project  of  union  was  at  this 
time  broached,  but  the  incident  showed  that  when  any 
matter  clearly  affected  their  interests,  most  of  the  colonies 
could  readily  get  together  and  take  a  common  action.  Why 
was  it,  in  view  of  the  manifest  advantages  of  cooperation, 
that  the  thirteen  colonies  did  not  come  into  some  sort  of 
working  federation  long  before  the  actual  outbreak  of 
troubles  with  England?  Local  jealousies  afford  one  reason. 
A  failure  to  realize  that,  in  a  broad  sense,  all  their  chief 
interests  were  alike,  is  another.  The  home  government, 
moreover,  was  never  favorable  to  any  scheme  of  union 
such  as  would  give  the  colonies  a  solidarity  of  action  in  all 
matters.  It  was  ready  to  have  them  join  for  the  common 
defence,  provided  the  carrying  out  of  such  plan  were  intrusted 
to  officers  sent  out  from  England.  In  a  word,  the  colonies 
never  realized  their  essential  unity  until  the  acute  contro- 
versy with  the  mother  country  made  it  clear  to  them.  Then, 
and  then  only,  did  any  real  union  become  practicable. 

This  is  not  the  place  to  narrate  the  events  which  led  to  (5)  The 
the  breach  with  England.     It  should  be  pointed  out,  how-  ^5° 
ever,  that  there  was  no  general  dissatisfaction  with  the  Congress, 
type  of  existing  government  in  the  various  colonies.     The  1774' 
revolution  did  not  come  because  all  the  colonies  wanted 
charters    or  elective  governors  or  manhood  suffrage.     Its 
underlying  causes  were  economic ;    they  concerned  ques- 
tions of  trade  and  taxation.     But  once  the  spirit  of  resistance 
was  aroused,  it  found,  as  it  always  does,  new  and  broader 
grievances.     The  colonists  soon  came  to  a  realization  of 
the  fact  that  democracy,  especially  in  New  England,  had 
been  forging  ahead  more  rapidly  than  at  home,  and  in  the 
Declaration  of  Independence  new  ideals  of  democracy,  un- 
known at  this  period  in  England,  found  vigorous  expression. 
It  was  the  events  of  1773-1774,  including  the  imposition 
of  the  new  taxes  and  the  four  repressive  acts  of  parlia- 
ment suspending  the  charter  of  Massachusetts  and  institut- 


12         THE  GOVERNMENT  OF  THE  UNITED  STATES 

ing  other  drastic  measures  of  coercion,  which  supplied  the 
inspiration  to  union  hitherto  lacking  among  the  colonies. 
One  of  their  number  was  now  in  danger  of  having  its  liber- 
ties curtailed :  what  of  the  others,  each  in  turn  ?  Singly 
the  thirteen  colonies  might  easily  be  brought  one  after 
another  to  comply  with  the  demands  of  parliament.  The 
danger  was  not  now  confined  to  north  or  south ;  it  was 
common  to  all.  Hence  the  calling  of  the  first  Continental 
Congress,  which  met  at  Philadelphia  in  the  autumn  of  1774 
with  delegates  present  from  all  the  colonies  except  Georgia. 
These  representatives  were  chosen  in  a  variety  of  ways, 
some  by  the  colonial  legislatures,  some  by  conventions, 
and  some  by  the  committees  of  correspondence  or  informal 
committees  of  townsmen  such  as  had  been  established  in 
Massachusetts  to  unify  popular  action  in  case  the  legislature 
should  be  dissolved.  The  object  of  this  Congress  was  to 
ward  off  an  impending  common  peril  by  showing  a  united 
front.  Its  members  adopted  various  addresses  to  the  home 
authorities ;  pledged  the  cooperation  of  all  the  colonies  in 
resistance  to  oppressive  demands,  and,  finally,  agreed  that 
a  similar  congress  should  be  called  in  the  following  year. 
(6)  The  Before  the  early  summer  of  1775,  when  this  second  Con- 

second          tinental  Congress  assembled,  once  again  at  Philadelphia, 

Continental  .       °  &  ^     ' 

Congress,      the  situation  had  rapidly  gone  from  bad  to  worse.      Ihe 
1775.  open  clash  of  arms  had  come  at  Lexington  and  Concord, 

and  the  fate  of  Massachusetts  seemed  to  be  sealed  unless 
the  other  colonies  should  quickly  and  loyally  come  to  her 
aid.  There  was  now  no  hanging  back.  All  the  colonies 
without  exception  sent  their  delegates  to  the  Continental 
Congress  of  1775,  and  this  body  at  once  assumed  general 
direction  of  the  whole  colonial  cause.  Without  any  quibbles 
as  to  the  source  or  scope  of  its  powers  the  Congress  appointed 
Washington  to  the  chief  command,  called  upon  all  the 
colonies  for  assignments  of  troops  and  supplies,  and  took 
upon  itself  the  right  to  issue  paper  money  on  the  joint  credit. 
Its  powers  were  usurped  out  of  the  necessities  of  the  situa- 
tion ;  the  legal  questions  were  left  to  be  discussed  and 
.  settled  later.  The  only  sanction  of  its  acts  was  the  acquies- 
cence of  the  people,  but  in  the  last  analysis  is  not  this  the  only 
effective  sanction  that  any  public  authority  can  have  ? 


ENGLISH  AND  COLONIAL  ORIGINS  13 

It  was  not  possible,  however,  that  a  situation  so  anomalous  (7)  The 
should  long  be  maintained.     The  colonies  were  still  subject  ^oifo™' 
to  the  king  although  in  active  resistance  to  the  royal  author-  independ- 
ity.     They  had  tacitly  assumed  the  attributes  of  sovereignty  ancUhJ76' 
without  declaring  themselves  sovereign  states.     This  situa-  Articles  of 
tion,  however,   came  to  an  end  with  the  Declaration  of 
Independence  in  1776.     On  July  fourth  of  that  year  the 
colonies   became   states,    each   independent    of   the   crown 
and  independent  of  each  other.     This  action  made  it  even 
more    imperative    that    the    Continental    Congress    should 
rest  on  a  firmer  and  more  stable  basis  than  that  of  a  body 
brought  into  being  by  Revolution  with  no  clear  definition  of 
its  powers  or  duties.     Accordingly,  on  November  15,  1777, 
the  Continental  Congress  sought  to  gain  for  itself  the  forms 
of  legality  by  adopting  the  "Articles  of  Confederation  and 
Perpetual  Union,"  which  had  been  in  process  of  preparation 
by  one  of  its  committees  for  some  months  previously.     This 
step  was  the  culmination  of  the  long  process  by  which  the 
thirteen  communities  had  been  brought  to  a  full  realization 
of  their  political  kinship ;  it  was  at  the  same  time  the  start- 
ing point  from  which,  ten  years  later,  a  far  stronger  and 
more  lasting  union  was  evolved. 


CHAPTER  II 


Constitu- 
tional 
importance 
of  the 
Articles. 


PRELIMINARIES   OF  NATIONAL   GOVERNMENT 

THE  action  of  the  Continental  Congress  in  preparing  and 
adopting  the  Articles  of  Confederation  represented  a  step 
of  profound  importance  in  the  evolution  of  the  American 
political  system.  Now,  for  the  first  time,  a  group  of  dele- 
gates representing  all  the  colonies  were  ready  to  set  up  a 
union  which  would  be  something  more  than  a  mere  alliance 
for  the  common  defence,  which  would  be  "perpetual"  in 
character  and  thus  endure  in  peace  as  well  as  in  war.  That, 
of  itself,  is  enough  to  designate  the  adoption  of  the  Articles 
as  a  milestone  in  the  march  towards  a  real  federation.  But 
even  more  deserving  of  attention  is  the  fact  that  the  various 
provisions  of  the  Articles  had  a  dominant  influence  upon 
the  minds  and  actions  of  those  who  formed  the  national 
constitution  ten  years  later.  Some  of  these  provisions 
worked  out  well,  and  they  were  perpetuated  in  the  new 
constitution;  others  worked  so  badly  that  they  were  dis- 
carded without  much  regret  or  hesitation ;  while  still  a  few 
others,  not  having  clearly  demonstrated  their  full  possibilities 
for  either  good  or  ill,  were  either  dropped  altogether  or 
retained  in  modified  form.  The  experience  of  the  states 
under  the  Articles  of  Confederation  was  of  the  greatest 
value  in  this  way,  subjecting  various  political  theories, 
as  it  did,  to  the  test  of  actual  operation  under  difficult 
conditions.  The  student  of  political  institutions  should 
not  pass  lightly  over  the  ten  critical  years  in  which  the 
Articles  of  Confederation  embodied,  somewhat  crudely 
perhaps,  the  principles  and  practice  of  New  World  federal- 
These  were  formative  years  of  the  greatest  impor- 


ism. 


tance,   and  the  American   people   probably   learned   more 

14 


PRELIMINARIES  OF  NATIONAL  GOVERNMENT        15 

about  the  science  of  government  in  this  decade,  1777-1787, 
than  in  any  other.1 

The  Articles  of  Confederation  and  Perpetual  Union  were  Their 
adopted  by  the  Continental  Congress  after  a  good  deal  of 
discussion,  which  served  to  show  that  no  one  among  the 
delegates  had  much  enthusiasm  for  the  system  of  joint 
government  which  they  established.  They  were  then  sent 
to  the  legislatures  of  the  thirteen  states  for  ratification. 
By  the  provisions  of  the  Articles  the  several  states  entered 
into  a  firm  league  of  amity ;  but  each  state  retained  its 
sovereignty,  freedom,  and  independence.  Every  right  not 
expressly  delegated  to  the  confederation  remained  with 
the  states.  The  organ  of  the  confederation,  as  provided 
by  the  Articles,  was  to  be  a  Congress  made  up  of  delegates 
from  all  the  states,  each  state  to  send  not  fewer  than  two 
nor  more  than  seven.  But  whether  a  state  sent  the  mini- 
mum or  the  maximum  number  of  delegates,  it  was  in  any 
case  to  have  one  vote  only.  The  legal  equality  of  all  the 
states  was  thus  recognized,  although  there  were  already 
great  differences  among  them  in  area  and  in  population. 
Virginia  and  Massachusetts  each  had,  at  this  time,  eight 
or  ten  times  the  population  of  either  Georgia  or  Delaware 
or  Rhode  Island.  The  union  was  thus  a  loose  confedera- 
tion, as  distinguished  from  a  close  or  organic  federation 
of  states.2 

As  for  powers,  the  Congress  of  the  new  confederation  Powers  of 
was  given  relatively  few.     It  was  to  manage  the  war  and  J^nd^  t 
to  handle  foreign  relations.     It  might  call  upon  the  several  Articles 
states  for  contributions  of  money  or  men,  but  it  had  no  way  ° 
of  compelling  them  to  respond.     It  had  various  internal 
powers  such  as  those  of  establishing  a  postal  service  and 
managing  Indian  affairs.     With  nine  of  the  states  assenting, 
it  could  make  treaties,  borrow  on  the  joint  credit,   coin 
money  or  issue  bills  of  credit,  and  it  did  issue  paper  money 

1  A.  C.  McLaughlin,   The  Confederation  and  the  Constitution  (N.  Y., 
1905),  is  the  most  useful  single  volume  on  this  period.     John   Fiske's 
Critical  Period  of  American  History  (13th  ed.,  Boston,  1898),  is  an  extremely 
interesting  book,  but  not  always  accurate. 

2  For  the  exact  text  of  the  Articles  see  William  MacDonald,    Select 
Documents  Illustrative  of  the  History  of  the  United  States,  1776-1861  (N.  Y., 
1903). 


16         THE  GOVERNMENT  OF  THE  UNITED  STATES 

in  large  quantities  to  pay  the  expenses  of  the  war.  But  it 
had  no  power  to  tax,  no  power  to  regulate  trade,  and  no 
effective  authority  to  settle  disputes  among  the  various 
states  themselves.  The  powers  lodged  in  the  Congress  by 
the  Articles  were  not  extensive  when  judged  in  the  light 
of  later  events,  nevertheless  they  represented  substantial 
concessions  on  the  part  of  the  states.  Public  opinion  was 
not  at  the  time  prepared  to  go  much  farther.  National 
self-consciousness,  even  under  the  stress  of  a  war  for  exist- 
ence, had  not  yet  developed  to  the  point  of  rendering  a 
stronger  union  possible. 

Little  attention  was  bestowed  upon  the  executive  branch 
of  the  government.  It  was  apparently  assumed  that  the 
Congress,  while  in  session,  would  itself  perform  all  necessary 
executive  functions,  but  provision  was  made  for  a  committee 
of  the  states  to  sit  and  act  when  the  Congress  was  not  in 
session.  No  mention  was  made  of  executive  officers,  but 
it  was  taken  for  granted  that  the  Congress  might  appoint 
such  as  were  needed,  and  it  did  so  appoint  a  super- 
intendent of  finance,  a  secretary  of  war,  a  foreign  secretary, 
and  other  officials.  In  this  action  is  foreshadowed  the 
"heads  of  departments'7  who  later  became  an  integral 
part  of  the  federal  executive  under  the  constitution  of 
1787. 

Ratifica-  Even  as  it  was,  the  various  states  were  slow  in  ratifying 

^e  Articles  °f  Confederation,  and  it  was  not  until  1781 
that  all  had  given  their  assent.  Consequently  the  main 
dangers  of  the  war  were  over  before  the  confederation  com- 
pleted all  its  legal  formalities.  So  long  as  the  issue  of  the 
war  hung  in  the  balance  the  instinct  of  self-preservation 
moved  all  the  states  to  give  the  Congress  of  the  Confedera- 
tion a  varying  degree  of  support.  Some  responded  to  every 
call  for  men,  supplies,  and  money ;  others  lagged  behind. 
Each  state's  compliance  depended  partly  upon  its  own 
native  spirit  of  loyalty  and  partly  upon  whether  the  state 
lay  within  the  zone  of  immediate  war  dangers.  The  Con- 
gress had  no  coercive  power ;  it  had  no  means  of  compelling 
any  state  to  bear  its  due  share  of  the  war  burden.  During 
the  years  1782-1786  it  called  upon  the  several  states  for 
contributions  amounting  to  six  million  dollars  but  received 


PRELIMINARIES  OF  NATIONAL  GOVERNMENT         17 

only  one  million  in  all.  The  wonder  is  that  it  did  so  well, 
in  view  of  its  limited  resources.  The  problems  with  which 
it  had  to  deal,  moreover,  were  extremely  difficult,  for  the 
strain  of  the  war  bore  heavily  upon  all  the  states.  Each 
was  inclined  to  magnify  its  own  sacrifices.  The  common 
peril  did  not  suffice  to  extinguish  all  interstate  jealousies. 
These  things  as  well  as  the  inherent  defects  of  the  articles 
account  for  the  unsatisfactory  workings  of  central  govern- 
ment under  the  confederation.  At  the  best,  the  whole 
arrangement  was  a  makeshift,  and  after  the  conclusion  of 
peace  in  1783  none  of  the  states  appeared  to  have  any  inter- 
est in  it.  Hard  times  came  with  the  close  of  the  war ;  the 
country  was  deluged  with  paper  money,  and  in  several  of 
the  states  there  was  much  economic  confusion.  This  kept 
them  from  giving  serious  attention  to  the  workings  of  cen- 
tral government.  Each  state  was  too  intent  upon  the  solu- 
tion of  its  own  problems. 

Turn  for  a  moment  from  the  affairs  of  the  confederation  The  first 
and  see  what  the  states  themselves  had  been  doing  during 
the  war  and  after.  As  the  hostilities  spread  from  one 
colony  to  another  in  the  early  months  of  the  war,  the  various 
royal  governors  and  officials  left  the  country,  thus  breaking 
down,  in  part,  the  existing  governments.  In  consequence 
of  this  the  Continental  Congress,  even  before  it  adopted 
the  Declaration  of  Independence,  advised  that  each  colony 
should  reconstruct  its  government  to  suit  its  own  needs. 
Some  of  them  lost  no  time  in  following  this  advice.  Vir- 
ginia at  once  elected  a  convention  which,  under  Jefferson's 
leadership,  adopted  a  constitution  with  a  bill  of  rights  and 
provision  for  a  new  frame  of  state  government.  One  after 
another  the  remaining  states  followed,  until  Massachusetts, 
the  last  of  the  thirteen,  adopted  its  first  state  constitution 
in  1780. 

While  these  constitutions  differed  considerably  in  their  Their 
detailed  arrangements  they  all  present  a  marked  similarity.1 
In  every  case  provision  was  made  for  a  governor,  to  be  chosen 
by  the  legislature  or  by  the  voters  ;   in  nearly  every  instance 

1  A  conspectus,  showing  the  main  features  of  these  several  state  consti- 
tutions, may  be  found  in  Edward  Channing,  History  of  the  United  States, 
Vol.  iii,  pp.  459-462. 


18         THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  princi- 
ple of  sepa- 
ration of 
powers. 


Emphasis 
upon  secur- 
ities for 
individual 
liberty. 


there  was  provision  for  a  legislature  of  two  chambers ;  and 
in  each  for  a  judiciary,  appointed  either  by  the  governor  or 
by  the  legislature  or  by  a  branch  of  the  legislature.  The 
colonial  governor's  right  to  veto  legislation  was  abolished 
in  all  but  two  states,  and  in  every  one  of  them  the  governor's 
appointing  authority  as  it  had  existed  in  colonial  times 
was  taken  away  or  curtailed.  Greatly  increased  powers 
were  everywhere  allotted  to  the  state  legislatures.  The 
principle  of  the  separation  of  powers,  that  is,  of  keeping 
the  executive,  legislative,  and  judicial  powers  separate, 
gained  recognition  in  only  a  few  of  these  state  constitutions ; 
but  in  one  of  them  it  was  stated  plainly,  namely,  in  the  Massa- 
chusetts constitution,  which  set  forth  the  doctrine  as  fol- 
lows :  "In  the  government  of  this  commonwealth,  the  legis- 
lative department  shall  never  exercise  the  executive  and 
judicial  powers,  or  either  of  them :  the  judicial  shall  never 
exercise  the  legislative  and  executive  powers,  or  either  of 
them :  to  the  end  that  it  may  be  a  government  of  laws  and 
not  of  men."  From  this  unequivocal  statement  in  one  of 
the  new  state  constitutions,  however,  it  is  not  to  be  con- 
cluded that  the  doctrine  of  separation  of  powers  was  al- 
ready finding  general  favor.  Most  of  the  states  did  not 
at  the  outset  seem  afraid  of  making  the  state  legislature 
supreme. 

Another  characteristic  of  the  earliest  state  constitutions 
was  the  emphasis  which  most  of  them  placed  upon  securities 
for  individual  liberty.  Many  of  these  guarantees  already 
existed  at  common  law,  but  the  events  which  preceded 
and  accompanied  the  Revolution  convinced  the  framers 
of  the  various  state  constitutions  that  it  would  be  well  to 
have  them  incorporated  into  these  organic  documents. 
Freedom  of  speech  and  of  assembly,  the  right  of  trial  by 
jury,  the  privilege  of  the  writ  of  habeas  corpus,  —  these 
and  many  other  so-termed  inalienable  rights  now  found 
their  way  to  definite  expression  in  terms  of  constitutional 
guarantees.  Yet  on  the  whole  the  new  constitutions  did 
not  establish  governments  that  were  radically  different 
in  form  from  those  which  existed  in  colonial  days.  Little 
or  nothing  was  borrowed  from  outside.  The  new  state 
constitutions  embodied  the  results  of  a  liberal  overhauling 


PRELIMINARIES  OF  NATIONAL  GOVERNMENT         19 

of  what  had  long  existed  in  the  several  colonies.  Indeed 
the  colonies  which  had  possessed  charters  before  the  Revo- 
lution found  very  little  overhauling  necessary.  So  far 
as  the  frame  of  government  in  each  of  these  thirteen  com- 
munities is  concerned,  the  Revolution  and  the  subsequent 
adoption  of  new  state  constitutions  made  no  violent  changes. 
There  were,  however,  great  changes  in  the  spirit  of  govern- 
ment, in  the  responsiveness  of  officials  to  public  opinion, 
in  the  attitude  of  the  people  towards  those  in  authority, 
and  in  possibilities  afforded  for  future  political  development. 

The  framing  of  these  state  constitutions,  moreover,  The  revived 
had  an  important  educative  influence.  While  they  were  in  £f^f*ical 
process  men  turned  their  thoughts  to  the  fundamentals  fundamen- 
of  government.  They  examined  anew  a  multitude  of  ques-  tals* 
tions  relating  to  the  state  and  the  social  order.  They 
talked  of  Locke  and  Montesquieu,  of  social  compacts, 
checks  and  balances,  popular  sovereignty  and  the  natural 
rights  of  the  citizen.  Hence  there  were  available  in  all 
the  states,  groups  of  men  who,  when  the  time  arrived,  could 
be  called  upon  to  help  in  the  larger  work  of  framing  a  con- 
stitution for  the  nation  as  a  whole.  Without  the  preliminary 
work  done  in  the  endeavor  to  make  federalism  efficient 
under  the  Articles  of  Confederation  and  in  the  making  of 
these  state  constitutions,  the  task  set  before  the  federal 
convention  of  1787  would  have  been  infinitely  harder  to 
perform.  The  whole  people,  moreover,  became  familiar 
with  the  idea  of  a  constitution  or  fundamental  law  as  the 
basis  of  government,  a  written  document  emanating  from 
the  people,  ordained  into  force  by  them  either  directly 
or  through  their  representatives,  and  guaranteeing  them 
against  abuses  of  power.  This  was  something  that  as 
Englishmen  they  had  never  learned. 

Such  was  the  situation  which  existed  in  the  years  immedi-  The  critical 
ately  following  1783  when  peace  once  more  came  upon  the  5rif5n~ 
land.     At   Philadelphia   there  was    a    Congress   made   up  toward 
of  delegates  from  the  several  states  as  provided  for  by  the  anarchv- 
Articles  of  Confederation.     Its   meetings   were   still   held, 
although  rarely  were 'all  the  states  represented.     Each  of 
these  states  had  adopted  its  own  new  constitution ;  each 
was  turning  attentively  to  the  settlement  of  its  own  problems. 


20        THE  GOVERNMENT  OF  THE  UNITED  STATES 

Economic  conditions  everywhere  were  disorganized,  for 
business  had  been  neglected  during  the  war  and  the  mass  of 
private  debts  was  very  large.  There  was  a  great  scarcity 
of  real  money  although  the  land  was  flooded  with  paper 
notes,  some  issued  by  the  confederation  and  some  by  the 
states.  Each  state  was  seeking  to  relieve  its  own  necessi- 
ties by  pressing  its  own  advantages,  grasping  at  everything 
within  reach.  So  avaricious  indeed  were  some  in  asserting 
their  claims  that  interstate  ill-feeling  rapidly  developed. 
In  some  cases  the  boundaries  between  the  colonies  had 
never  been  authoritatively  fixed ;  now  that  the  colonies  had 
become  states  they  were  coming  close  to  blows  over  disputed 
claims  to  border  territory.  Likewise  there  were  commercial 
jealousies.  Each  state  was  hurrying  to  build  up  its  own 
trade  at  the  expense  of  its  neighbors.  Those  which  had 
natural  advantages  tried  to  exclude  others  from  the  use  of 
them.  The  initial  skirmishing  in  a  war  of  hostile  tariffs 
and  trade  discriminations  began  as  early  as  1785,  when  New 
York  imposed  fees  upon  all  vessels  entering  its  ports  from 
Connecticut  or  New  Jersey.  Virginia  and  Maryland  were 
at  swords'  points  over  the  navigation  of  the  Potomac. 
Trouble  was  impending  all  along  the  line. 

Why  did  not  the  Congress  at  Philadelphia  intervene  to 
Confederar  Preven^  this  drift  towards  federal  anarchy?  Its  members 
tion :  no  doubt  would  gladly  have  done  so  had  they  only  possessed 

the  power.  But  the  Congress,  no  longer  supported  with  any 
enthusiasm  by  the  states,  had  become  an  almost  negligible 
i.  its  lack  factor  in  public  affairs.  It  had  no  rights  of  taxation  and 
hence  no  revenues.  Yet  money  was  urgently  needed  to 
pay  interest  on  loans  made  in  France  and  Holland  as  well 
as  in  America  during  the  war ;  also  to  pay  the  ordinary  ex- 
penses of  government.  To  make  matters  worse,  the  officers 
and  soldiers  of  the  revolution  had  in  many  cases  served 
without  pay  other  than  certificates  of  indebtedness,  and 
they  were  now  clamoring  for  what  they  had  fully  earned.-1 
The  enormous  quantities  of  paper  money  which  had  been 
issued  became  so  depreciated  that  notes  finally  ceased  to 
pass  as  currency  at  all,  although  they  were  sometimes 

1  L.  C.  Hatch,  The  Administration  of  the  American  Revolutionary  Army 
(N.  Y.,  1904). 


PRELIMINARIES  OF  NATIONAL  GOVERNMENT        21 

bought  and  sold  in  bundles  by  speculators  who  hoped  that 
some  day  they  might  perhaps  get  one  cent  on  the  dollar  for 
them.  The  Congress,  it  is  true,  still  possessed  its  power  to 
call  on  the  several  states  for  money  contributions  and  did 
so  frequently ;  but  it  encountered  evasion  more  often  than 
response.  Some  states  quietly  ignored  the  requests  ;  others 
gave  a  small  part  of  what  was  asked  and  grumbled  loudly 
at  that ;  only  in  rare  instances  were  calls  complied  with 
promptly  and  in  full.  In  the  later  years  of  the  confedera- 
tion only  two  states,  New  York  and  Pennsylvania,  were 
making  any  serious  attempt  to  fulfil  their  financial  obliga- 
tions to  congress.  Without  funds  the  confederation  was 
impotent.1  It  could  neither  pay  off  the  old  army  nor  raise 
a  new  one.  It  could  not  meet  the  interest  payments  on 
the  national  debt.  It  could  not  provide  ships  to  protect 
the  commerce  of  the  states  against  the  Barbary  pirates 
who  were  seizing  American  seamen  in  the  Mediterranean 
and  holding  them  for  ransom.  It  could  not  provide  for 
proper  diplomatic  representation  of  the  United  States  abroad. 
The  entire  income  of  the  confederation  during  its  later 
days  was  less  than  two  hundred  thousand  dollars  a  year. 

By  the  Articles  of  Confederation  the  Congress  had  author-  2.  Lack  of 
ity  to  borrow  on  the  common  credit  (provided  nine  states 
assented),  and  some  loans  were  secured  under  this  authority. 
But  with  no  regular  revenues  to  insure  prompt  payment  of 
interest  or  the  repayment  of  principal  at  maturity  it  was 
not  possible  to  obtain  funds  except  on  onerous  terms  either 
at  home  or  abroad.  John  Adams  in  1784  was  sent  to  Europe 
on  a  borrowing  expedition,  but  all  he  could  obtain  was  about 
three  hundred  thousand  dollars,  and  for  even  this  relatively 
small  sum  it  was  necessary  to  promise  an  exorbitant  rate 
of  interest.  The  public  credit  was  down  to  bed  rock.  Yet 
any  new  country,  particularly  after  an  exhausting  struggle, 
neecte  large  sums  for  upbuilding,  -and  this  was  America's 
situation.  The  need,  however,  was  not  so  much  for  larger 
borrowing  powers  as  for  a  national  credit  supported  by  a 
national  income  as  a  basis  for  borrowing. 

Equally  important  among  the  specific  weaknesses  of  the 

1  C.  J.  Bullock,   The  Finances  of   the   United  States,  1775-1789;  with 
Especial  Reference  to  the  Budget  (Madison,  1895). 


22        THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.  Its  lack 
of  power 
to  regu- 
late 
commerce. 


4.  Its  mili- 
tary im- 
potence. 


Confederation  was  the  lack  of  any  power  to  regulate  trade, 
either  with  foreign  nations  or  among  the  several  states  or 
with  the  Indian  tribes  of  the  great  hinterland.  The  regu- 
lation of  trade  involves,  as  a  rule,  the  making  of  tariffs 
and  the  congress  could  impose  no  duties  on  imports  or  ex- 
ports. Each  state  was  already  making  its  own  tariff,  and 
each  was  doing  its  best  to  attract  commerce  to  its  own  ports. 
The  common  good  counted  for  next  to  nothing  in  their 
respective  policies.  Commercial  rivalry  among  neighbor- 
ing states  was  rapidly  engendering  bad  feeling,  and  a  spirit 
of  avarice  and  retaliation  was  in  the  air.  The  central  gov- 
ernment could  do  nothing  but  sit  in  silence  while  this  in- 
terplay went  on.  Meanwhile,  moreover,  the  opportunity 
to  make  favorable  commercial  treaties  with  various  Euro- 
pean nations  was  slipping  rapidly  away.  It  was  obviously 
desirable  that  in  such  matters  all  thirteen  states  should 
act  together.  Yet  under  the  existing  conditions  no  such 
common  action  could  be  hoped  for.  "We  are  one  nation 
to-day  and  thirteen  to-morrow/7  said  Washington.  "Who 
will  treat  with  us  on  such  terms?" 

Most  ominous  of  all  was  the  outlook  in  international 
relations.  England  was  still  intrenched  in  Canada  to  the 
north,  while  Spain  possessed  the  southwest.  The  American 
colonies  had  won  their  independence  with  the  aid  of  France, 
but  who  could  tell  how  long  the  tottering  Bourbon  monarchy 
would  stay  friendly  or  continue  in  a  position  to  render  aid  ? 
Two  powerful  nations  of  Europe  were  on  the  confedera- 
tion's flanks :  what  if  they  should  some  day  join  hands 
to  raid  the  land  and  divide  the  spoils?  Nor  was  such  an 
eventuality  altogether  beyond  the  range  of  possibilities, 
particularly  if  the  states  should  fall  to  quarrelling  among 
themselves.  Even  if  all  should  make  common  cause,  stand 
united,  and  prepare  for  this  danger,  it  would  continue  to 
present  a  serious  aspect ;  but  without  preparation  or  unity, 
with  the  states  split  into  rival  factions,  one  faction  perhaps 
calling  in  outside  assistance,  the  peril  would  be  overwhelm- 
ing. Seventy-five  years  later,  when  a  much  larger  group 
of  American  states  engaged  in  civil  strife  over  the  issue  of 
slavery,  the  danger  of  foreign  intervention,  and  with  it  the 
probable  disruption  of  the  Union  for  all  time,  was  still  seri- 


PRELIMINARIES  OF  NATIONAL  GOVERNMENT        23 

ous.  Yet  by  that  time  both  France  and  Spain  had  practi- 
cally withdrawn  from  the  Western  Hemisphere.  How 
much  more  vividly  the  danger  must  have  appeared  to 
sagacious  men  in  the  last  decades  of  the  eighteenth  cen- 
tury! 

The  shortcomings  of  the  confederation  are  well  summa-  General 
rized  in  what  Washington  called  "the  absence  of  coercive  ^con^ 
power."  "I  do  not  conceive/7  he  wrote,  "that  we  can  federation, 
exist  long  as  a  nation  without  having  lodged  somewhere  a 
power  which  will  pervade  the  whole  Union  in  as  energetic 
a  manner  as  the  authority  of  the  state  governments  extends 
over  the  several  states."  In  other  words  the  Congress  of 
the  Confederation  could  deal  only  with  the  states  and  not 
directly  with  the  people  as  the  legislatures  of  the  various 
states  could  do.  Specifically  it  was  impotent  because  it 
lacked  four  things  which  every  strong  national  government 
must  possess :  ability  to  raise  revenues  by  taxation,  to 
borrow  money,  to  regulate  commerce,  and  to  provide  ade- 
quately for  the  common  defence  by  raising  and  supporting 
armies.  And  these,  rather  significantly,  were  the  four 
greatest  powers  given  to  the  Congress  of  the  United  States 
by  the  constitution  which  in  1787  replaced  the  old  Articles 
of  Confederation. 

Notwithstanding    its    meagre    authority,    however,    the  What  the 
achievements  of  the  old  Congress  were  highly    creditable,  c.onfedera- 

•*  tion  accom- 

It  kept  the  armies  in  the  field  until  peace  was  assured,  piished. 
and  in  the  face  of  stupendous  difficulties  furnished  them 
with  supplies.  Despite  its  cumbrous  and  imperfect  execu- 
tive machinery  it  negotiated  the  Peace  of  1783  whereby 
the  independence  of  the  thirteen  states  was  given  full 
recognition  by  Great  Britain.  During  these  years  the 
Congress  was  the  sole  embodiment  of  federal  authority  in 
America,  the  one  centripetal  force  that  held  thirteen  jealous 
communities  to  a  policy  of  reasonably  united  effort.  What 
it  lacked  in  formal  powers  was  counterbalanced  in  part  by 
its  patience  and  its  patriotism. 

During   these   years    there   were   thoughtful   men  both  Attempts 
in  the  Congress  and  outside  of  it  who  realized  that  things  *?      ,. 

i  •         •  T          •  mi  strengthen 

were  heading  in  the  wrong  direction.     1  he  confederation,  the  con- 
they  urged,  must  be  strengthened  or  it  would  go  to  pieces  federation- 


24        THE  GOVERNMENT  OF  THE  UNITED  STATES 

for  lack  of  funds.  As  early  as  1781  the  Congress  had  made 
a  request  to  the  several  states  that  it  be  allowed  to  lay  a 
five  per  cent  tax  on  certain  imports.  Nearly  all  the  states 
were  willing,  but  Rhode  Island  refused.  Two  years  later 
a  different  proposition  was  put  forth,  namely,  that  the 
several  states  should  collect  certain  import  duties  and 
apply  all  the  proceeds  to  paying  off  the  debt  incurred  by 
the  confederation  during  the  war.  But  this  suggestion 
was  declined  by  four  states.  In  1786  matters  came  to  a 
crux  when  the  Congress  plainly  put  the  whole  matter  before 
the  nation.  "A  crisis  has  arrived,"  it  declared,  "when  the 
people  of  the  United  States,  by  whose  will  and  for  whose 
benefit  the  federal  government  was  instituted,  must  decide 
whether  they  will  support  their  rank  as  a  nation  by  main- 
taining the  public  faith  at  home  and  abroad,  or  whether, 
for  the  want  of  a  timely  exertion  in  establishing  a  general 
revenue  and  thereby  giving  strength  to  the  Confederacy, 
they  will  hazard  not  only  the  existence  of  the  Union  but 
of  those  great  and  invaluable  privileges  for  which  they  have 
so  arduously  and  so  honorably  contended. " 

The  Now  it  happened  about  this  time  (1785)  that  Maryland 

Annapohs  anc[  Virginia  were  endeavoring  to  reach  an  agreement 
tion,  1786.  concerning  the  navigation  of  the  Potomac.  Commissioners 
from  these  two  states,  having  reached  an  understanding, 
proposed  that  Pennsylvania  and  Delaware  be  also  asked 
to  assent  to  the  arrangement.  Thus  the  project  enlarged 
until  in  the  end  all  the  states  were  asked  to  send  delegates 
to  a  convention  to  be  held  at  Annapolis  in  1786  to  consider 
the  trade  interests  of  the  confederation  and  "how  far  a 
uniform  system  in  their  commercial  regulations  may  be 
necessary  to  their  common  interest  and  their  permanent 
harmony. "  The  response,  however,  was  disappointing, 
for  when  the  convention  met,  only  five  states  were  repre- 
sented.1 The  others  did  not  seem  to  be  sufficiently  inter- 
ested. Consequently  the  Annapolis  convention  did  not 
feel  that  it  would  be  worth  while  to  take  up  the  task  for 
which  it  had  been  called  together.  Alexander  Hamilton 
of  New  York,  however,  suggested  that  another  attempt 

1  The  states  represented  were  Virginia,  New  York,  New  Jersey,  Pennsyl- 
vania, and  Delaware. 


PRELIMINARIES  OF  NATIONAL  GOVERNMENT        25 

be  made  and  resolutions  were  adopted  pointing  out  the 
critical  condition  of  affairs  and  asking  all  the  states  to  send 
representatives,  not  less  than  three  or  more  than  seven, 
to  a  convention  to  be  held  in  Philadelphia  the  next  summer. 

The  purpose  of  this  convention,  as  stated  in  the  resolu-  The 
tion,  was ."  to  take  into  consideration  the  situation  of  the 
United  States,  to  devise  such  further  provisions  as  shall 
appear  to  them  necessary  to  render  the  constitution  of  the 
federal  government  adequate  to  the  exigencies  of  the  Union 
and  to  report  such  an  Act  for  that  purpose  to  the  United 
States  in  Congress  assembled,  as,  when  agreed  to  by  them, 
and  afterwards  confirmed  by  the  legislatures  of  every  state, 
will  effectually  provide  for  the  same."  Copies  of  the  reso- 
lution were  sent  to  the  Congress  and  to  all  the  state  legis- 
latures. Congress  indorsed  the  idea  and  it  found  favor 
in  most  of  the  states,  chiefly  because  Washington,  Hamilton, 
Madison,  Franklin,  and  others  lent  their  personal  influence 
in  support  of  it.  No  one  openly  proposed  that  the  conven- 
tion should  be  authorized  to  draft  a  new  constitution.  The 
ostensible  purpose  was  to  supplement  and  strengthen  the 
Articles  of  Confederation.  All  of  the  states  except  Rhode 
Island  responded  to  this  call  and  appointed  their  delegates. 
In  some  states  the  appointments  were  made  directly  by 
the  state  legislature;  in  others  the  legislature  authorized 
the  governor  to  appoint  the  delegates.  All  were  summoned 
to  meet  at  Philadelphia  in  May,  1787. 


CHAPTER  III 


The  con- 
vention's 
allies. 


Obstacles 
to  its  sue- 


THE   CONSTITUTION  AND   ITS   MAKERS 

MUCH  has  been  written  about  the  difficulties  which  had 
to  be  surmounted  in  getting  the  states  to  send  delegates  to 
Philadelphia  in  1787,  and  even  more,  perhaps,  about  the 
obstacles  which  faced  these,  delegates  when  they  came  to- 
gether. Yet  the  convention  of  1787  met  under  fortunate 
auspices.  It  represented  a  people  who  had  already  shown 
their  capacity  for  drawing  together  in  the  face  of  outside 
pressure  and  of  staying  united  as  long  at  least  as  danger 
threatened.  All  had  passed  through  the  trials  of  a  long 
and  bitter  war;  all  loved  their  new  freedom  because  they 
had  been  through  such  sacrifices  to  make  it  their  own. 
Practically  all  were  believers  in  the  merits  of  republican 
government,  for  those  who  did  not  so  believe,  the  Tories, 
had  been  harried  out  of  the  land.  There  were  some  mon- 
archists at  heart,  no  doubt,  but  they  were  not  proclaiming 
their  sentiments  aloud.  The  convention  of  1787,  moreover, 
represented  a  people  who  already  had  acquired  a  consider- 
able round  of  experience  in  the  making  of  new  governments, 
thirteen  of  them,  and  had  seen  these  fruits  of  their  own 
handiwork  gain  in  power.  The  states  themselves  were 
forging  ahead,  even  if  the  confederation  was  not.  The 
public  mind  had  been  tuned  up  by  political  discussion. 
And,  most  vital  of  all,  every  one  now  felt  that  something 
needed  to  be  done. 

On  the  other  hand,  despite  those  various  motives  and 
forces  which  made  for  a  closer  union  and  a  stronger  central 
government,  there  were  great  and  real  obstacles  in  the  con- 
vention's way.  The  northern  and  southern  states  were 
already  becoming  quite  unlike  in  their  economic  and  social 
environment.  In  every  state  the  local  patriotism  was  in- 

26 


THE  CONSTITUTION  AND  ITS  MAKERS  27 

tense.  There  was  everywhere  a  dread  of  external  authority, 
a  conviction  that  all  good  government  must  come  from 
within  not  without,  from  below  not  from  above.  The  very 
distances  which  separated  the  states  one  from  another,  the 
absence  of  good  roads,  the  infrequency  with  which  men 
travelled  from  one  part  of  the  country  to  the  other  —  all 
these  things  helped  to  accentuate  provincialism.  Liberty 
had  been  won;  equality  there  always  had  been;  but  of 
fraternity  there  was  as  yet  little  or  none  at  all.  Georgia 
and  Massachusetts,  for  example,  had  much  in  common,  but 
among  their  people  there  was  no  ready  realization  of  this 
identity  in  ideals  or  in  interests.  Taking  it  all  in  all,  how- 
ever, it  was  the  fundamental  sense  of  kindred  that  counted ; 
the  minor  elements  of  unlikeness  among  the  states  did  not, 
in  the  end,  prove  to  be  as  great  obstacles  as  might  have  been 
expected. 

The  convention  was  summoned  to  meet  on  the  second 
Monday  in  May,  1787,  but  when  that  date  arrived  many  of  Invention, 
the  delegates  had  not  reached  Philadelphia  and  more  than  a 
fortnight  was  lost  in  getting  started.  At  length,  a  sufficient 
number  being  on  hand,  the  convention  unanimously  chose 
Washington  as  its  president,  decided  that  its  deliberations 
should  be  secret,  and  plunged  right  into  its  work.  The 
meetings  were  held  in  the  old  brick  State  House  in  Phila- 
delphia, the  building  in  which  the  Declaration  of  Indepen- 
dence had  been  signed.1 

Who  were  the  men  assembled  here  to  wrestle  with  the  Who  com- 
problem  of  welding  thirteen  restless  and  sensitive  communi-  Posedlt? 
ties  into  a  strong  nation  ?     There  is  a  popular  notion  that 
they  embodied  most  of  the  wisdom  and  resourcefulness  in 
the  land,  that  the  Fathers  of  the  Republic  formed  a  galaxy 
of  New  World  Solons  and  Ciceros.     In  truth,  however,  and 
very  fortunately,  that  was  not  the  case.     The   conven- 
tion of   1787  was  a  gathering  of  very  diverse  types.     It 
contained  many  men  of  great  political  wisdom.     It  also  in- 

1  The  Records  of  the  Federal  Convention  of  1787,  by  Max  Farrand  (3 
vols.,  New  Haven,  1911),  afford  the  best  source  for  a  careful  study  of  the 
convention's  work.  The  same  author's  Framing  of  the  Constitution  of  the 
United  States  (New  Haven,  1913)  gives  an  excellent  summary  of  the  larger 
compilation.  Mention  should  also  be  made  of  Edward  Elliott,  Biographi- 
cal Story  of  the  Constitution  (N.  Y.,  1910). 


28        THE  GOVERNMENT  OF  THE  UNITED  STATES 


Variety  of 


ests  repre- 
sented. 


eluded  in  its  membership  some  men  whom  nature  had  en- 
dowed with  neither  ability  nor  good  temper,  as  the  proceed- 
ings disclose.  All  that  can  truly  be  said  of  the  convention's 
make-up  is  that  it  included  men  of  widely  different  ability, 
temperament,  and  experience;  and  therein  lay  its  real 
strength.  It  contained,  as  has  been  so  often  pointed  out, 
a  few  men  of  rare  political  genius,  such  as  George  Washing- 
ton, Alexander  Hamilton,  and  James  Madison  ;  likewise 
some  judicially-minded  spirits,  such  as  Benjamin  Frank- 
lin, James  Wilson,  John  Dickinson,  Robert  Morris,  and 
Roger  Sherman  ;  some  thoroughly  well-meaning  men  of  mod- 
erate attainments,  such  as  William  Paterson,  John  Rut- 
ledge,  and  the  two  Pinckneys  ;  a  few  long-winded  obstruc- 
tionists, like  Luther  Martin,  who  did  little  but  clog  the  wheels  ; 
and  two  score  of  others  who  rarely  had  much  to  say  but 
who  listened  attentively  and  voted  right  when  important 
issues  arose.  The  men  in  this  last  group  were  the  ones 
whom  William  Pierce  in  his  contemporary  pen-picture  of  his 
fellow  delegates  termed  the  "  respectable  characters"  of  the 
convention,  and  they  outnumbered  all  others.1 

There  were  fifty-five  men  in  the  constitutional  convention, 
representing  twelve  states.  Pennsylvania  sent  her  full 
quota  of  seven  ;  while  New  York,  on  the  other  hand,  sent 
only  three,  and  these  were  absent  a  large  part  of  the  time. 
More  than  half  the  delegates  were  college  graduates;  a 
majority  of  them  had  held  public  offices  of  one  sort  or 
another,  some  of  them  posts  of  high  importance.  Not  a 
^ew  W6re  men  °^  ^arSe  business  interests,  while  as  many 
others  were  in  very  modest  worldly  circumstances.  Every 
shade  of  opinion  and  political  belief  was  represented  : 
from  Alexander  Hamilton,  who  would  have  created  a 
thoroughly  centralized  and  aristocratic  union,  to  Luther 
Martin  of  Maryland,  who  wanted  the  old  confederation 
left  as  it  was,  weaknesses  and  all.  Its  variety  of  ideas 
and  attitudes,  not  its  omniscience,  was  the  great  asset 
of  this  convention.  Many  wiser  groups  of  men  at  vari- 

1  William  Pierce  of  the  Georgia  delegation  diverted  some  of  his  time 
from  the  serious  work  of  the  convention  to  write  and  leave  for  posterity 
an  interesting  though  somewhat  facetious  sketch  of  his  colleagues.  It  is 
printed  in  the  American  Historical  Review,  iii,  pp.  310-334. 


THE  CONSTITUTION  AND  ITS  MAKERS  29 

ous  times  in  human  history  have  set  their  minds  to  the 
work  of  law-making,  but  never  has  there  been  a  body  more 
evenly  balanced,  or  more  willing  to  compromise  for  the 
sake  of  progress,  or  more  intent  on  creating  a  frame  of 
government  able  to  meet  the  strain  that  might  be  put 
upon  it. 

Washington  presided  throughout  the  convention's  deliber-  Leaders  of 
ations.     As  presiding  officer  he  felt  himself  debarred  from  {£,en?onven 
a  prominent  part  in  the  debates  and  is  only  once  on  record  Washing- 
as  a  participant ;   but  he  rendered  great  service  in  quieting  ^'nklin 
the  occasional  storms  of  personal  animosity,  and  his  com-  and 
manding  influence  was  on  many  occasions  unobtrusively  Hamilton- 
exercised  in  the  right  direction.     Benjamin  Franklin,  who 
headed  the  Pennsylvania  group,  was  the  greatest  savant 
of  them  all,  but  he  was  now  eighty-one  years  old  and  his 
voice  would   no   longer  rise   above   a  whisper.      But    his 
mature  judgment  and  his  quiet  optimism  were  steadying 
factors   of   great   value.     Some   of  the  wisest   suggestions 
came  from  him.     In  point  of  political  genius,  imagination, 
and  eloquence,  none  of  the  delegates  equalled  Alexander 
Hamilton  of  New  York.     He  was  still  a  young  man,  only 
thirty,  well  educated,   and  with  intense  political  convic- 
tions.    He    distrusted    popular    government    and    wanted 
the  ship  of  state  to  be  well  ballasted.     It  is  often  said  that 
he  was  at  heart  a  monarchist,  but  he  was  hardly  that.     It  is 
fairer  to  speak  of  him  as  a  friend  of   centralized    republi- 
canism such  as  exists  to-day  in  France  but  for  which  there 
were  no  precedents  in  his  time.     Hamilton,  unfortunately, 
was  absent  from  meetings  a  great  deal,  owing  to  personal 
business    of    an    urgent    nature,    but    when    present,    he 
always  had    ideas  to  put   forward.     The   convention  did 
not  often  fall  in  with  his  views,  and  while  the  delegates 
applauded  his  oratory  they  regularly  voted  his  proposals 
down. 

Then  there  was  James  Madison  of  Virginia.     He  is  often  James 
called  the  "  Father  of  the  Constitution/'  and  if  the  attribute  Madison- 
of  paternity  must  go  to  some  one  man,  he  is  entitled  to  it. 
Less  brilliant  than  Hamilton,  he  was  far  more  widely  read, 
more  discriminating  in  his   opinions,   less   aggressive   and 
more  patient  in  the  advocacy  of  his  own  views.      Every 


30        THE  GOVERNMENT  OF  THE  UNITED  STATES 

one,  in  the  words  of  the  chronicler  Pierce,  acknowledged 
his  greatness.  From  early  days  an  industrious  student 
of  past  politics  and  present  history,  he  knew  what  had 
brought  about  the  rise  and  fall  of  every  federation  from  the 
Achaean  League  to  his  own  day.  In  preparation  for  the 
convention  he  had  prepared  some  elaborate  "Notes  on 
Ancient  and  Modern  Confederacies,"  and  this  manuscript 
furnished  him  with  ammunition  for  his  part  in  the  debates. 
He  was  no  orator,  but  his  sound  and  sure  knowledge  of  his- 
torical precedents  made  him  what  Pierce  termed  "the  best- 
informed  man"  in  the  convention.  Madison  was  from  first 
to  last  the  most  influential  member  of  the  convention, 
and  he  owed  this  to  his  untiring  industry  as  a  student, 
his  unfailing  readiness  to  work  in  harmony  with  men  whose 
opinions  differed  from  his  own,  and  his  unquestioned  per- 
sonal integrity.  Much  of  what  we  now  know  about  the 
proceedings  of  the  convention  is  due  to  Madison's  methodi- 
cal industry,  for  day  by  day  he  entered  in  his  private  journal 
a  r6sum6  of  what  went  on.  The  constitution  as  finally 
drafted  was  not  a  mirror  of  his  own  political  ideas, 
but  it  included  the  things  he  had  most  strongly  con- 
tended for. 

The  rank  There  were  others  among  the  members  whose  prominence 
almost  gave  them  rank  as  leaders.  Luther  Martin  of  Mary- 
land was  one  of  these,  if  the  frequency  and  prolixity  of  his 
speeches  in  the  convention  may  be  taken  as  indications  of 
prominence.  James  Wilson  and  Gouverneur  Morris  of 
Pennsylvania,  Roger  Sherman  and  Oliver  Ellsworth  of 
Connecticut,  Elbridge  Gerry  of  Massachusetts,  William 
Paterson  of  New  Jersey,  the  two  Pinckneys  of  South  Caro- 
lina, were  all  active  in  the  proceedings.  It  is  hard  to  tell 
just  how  much  real  influence  each  exercised,  for  in  the  con- 
stitutional convention  of  1787,  as  in  all  other  deliberative 
bodies,  the  men  most  frequently  on  their  feet  are  not 
necessarily  the  ones  whose  opinions  counted  heavily  with 
their  colleagues. 

While  the  convention  contained  men  of  all  ages,  from 
Mercer  of  Virginia,  who  was  only  twenty-eight,  to  Franklin, 
who  was  almost  eighty-two,  one  is  impressed  with  the 
fact  that  much  of  the  best  work  was  done  by  the  younger 


THE  CONSTITUTION  AND  ITS  MAKERS  31 

members.  James  Madison,  who  contributed  most  to  the 
daily  labors,  was  thirty-six ;  Alexander  Hamilton,  who  made 
the  greatest  single  argument  of  the  whole  summer,  was 
only  thirty;  and  Gouverneur  Morris,  who  put  the  fine 
finishing  touches  to  the  document,  was  just  thirty-five. 
The  constitution,  accordingly,  reflected  the  zeal  and  opti- 
mism of  these  young  men,  chastened  to  moderation  by  the 
mature  judgment  of  their  older  colleagues.  Much  youth- 
ful courage  was  gathered  within  these  four  walls  during 
the  summer  of  1787,  but  there  was  also  enough  conserva- 
tism to  keep  it  in  bounds. 

In  organizing,  the  convention  adopted  its  own  rules.  The 
On  all  questions  the  vote  was  taken  by  states,  each  state  Procedure- 
having  one  vote.  The  delegates,  as  has  been  said,  were 
pledged  to  secrecy,  and  this  was  a  wise  move,  for  if  the  sub- 
sequent bitter  disagreements  on  many  points  among  the 
members  had  been  known  to  the  world,  the  constitution 
would  probably  never  have  been  ratified  by  the  several 
states.  Sessions  were  held  almost  every  week-day  from 
May  to  September.  Matters  were  often  referred  to  com- 
mittees, but  all  the  vital  questions  were  threshed  out  on 
the  floor  by  the  whole  convention. 

It  did  not  take  long  to  discover  that  among  the  dele-  Fundamen- 
gates  there  were  two  diametrically  opposite  opinions  as  to  ***• 
what  the  convention  ought  to  do.     Some  felt  that  the  Arti-  the  nature 
cles  of  Confederation  should  be  used  as  a  basis  and  that  of.the 
the  convention  had  no  authority  to  do  more  than  supple- 
ment or  strengthen  this  agreement.     Others  were  of  the 
opinion  that  the  articles  were  hopelessly  inadequate,  that 
revising  them  would  be  a  waste  of  time,  and  that  the  con- 
vention should  simply  throw  them  aside  and  begin  anew. 
Even  before  the  meetings  commenced,  in  fact,  James  Madi- 
son, with  the  help  of  his  Virginia  colleagues,  had  prepared 
a  new  scheme  which  disregarded  the  Articles  altogether, 
and  this  was  at  once  laid  before  the  convention  by  Edmund 
Randolph  of  Virginia.     Known  as  the  Randolph  plan,  it  The 
proposed  a  real  federal  union,  with  a  central  executive,  R1^dolph 
legislature,  and  judiciary,  with  independent  taxing  powers 
and  with  authority  to  make  its  mandates  fall  directly  upon 
the  individual  citizen,  not  merely  upon  the  states.     The 


THE  GOVEKXMEST  OF  THE  FXTTCD  STATES 


ledeial  Qongress»  under  tins  plan,  was  to  be  made  19  of 
lepresenfcatms  ftom  the  several  states  in  proportion  to 
their  respective  populations.  Virginia  wouki  thus  have 
ffteea  or  sixteen  if^msftatatras,  wldle  Geoi^  Delaware, 
or  Xew  Jeisey  wild  each  fern  only  one  or  two. 
?  :  -  As  m  counter  proposition  WiDiam  Fateison  of  New  Jersey 
brought  farrard  a  wholly  different  scheme.  This  pbn 

ftlftCC  Oft  31  x^OHUEK''QS$  ^MBI^  ^ '-  - 

fines  as  that  ri  the  conf edermtioii — asinsle 
chamber  with  each  slate  having  m  single  vote  but  with  the 
addition  of  an  exwutive  in  the  fora*  of  m  council  chosen 
by  the  Congress  and  with  provision  for  a  federal  judiciary. 
plan  ako  provided  for  a  fedetal  iev«Dne  by 
be  given  the  power  to  levy  duties 


i_;..:.  ;:  ::.^s;  :~  ;  y'ir.5  ;\  -::.-.:::•:.  .: 

the  convention, 
with  Viiginia, 

from  equally  plain  motives  of  self- 
New  Jersey.    For  days  the  con- 
debated  *!M£  iwaitji  and  iaults  of  each  proposal. 
One  faction  pointed  out  the  unfairness  of  giving  to  the 
would  pay  most  of  the  taxes  no  more  repre- 
tfcose  which  would  contribute  little.    The 
&  on  the  point  that  to  depart  from  the  old 
of  the  equafity  of  aH  the  states,  large  and  small, 

Tbeie  was  no  more  reason,  said  a  dde- 
fbr  giving  a  large  stale 
for  giving  a 
The  appeals,  after 
The  funda- 


For  a  time  it-  seemed 


would  spBt  its  keel  on  this  rock. 


THE  COX51HL11OX  AND  ITS  MAKKB8  33 

This  solution  is  commonly  known  as  the  Connecticut 
compromise,  because  it  was  brought  forth  by  the 
of  that  middle-sized  state,  although  it  is  believed  to  have 
sprung  from  the  fertile  intellect  of  Benjamin  Franklin. 
In  brief,  it  provided  that  in  the  proposed  federal  Congress 
the  upper  House  should  be  based  on  the  equal  representation 
of  the  states,  while  the  lower  House  should  represent  the 
several  states  hi  proportion  to  their  respective  populations, 
with  the  additional  proviso  that  all  bflfe  for  raising  or 
appropriating  money  should  originate  in  the  lower  House 
and  should  not  be  subject  to  amendment  in  the  upper  cham- 
ber. Before  the  convention  finished  its  work ,  however, 
this  latter  proviso  was  somewhat  modified.  With  great 
difficulty  the  delegates  were  induced  to 
cut  compromise,  but  it  was  finally  adapted  and  its 
ance  removed  the  greatest  obstacle  that  the  delegates 
encountered. 

This  fundamental  question  out  of  the  way,  the  con 
tion  began  to  make  better  progress.  But  soon 
source  of  friction  and  disagreement  was  encountered 
The  Connecticut  compromise  had  provided  that 
tatives  in  the  lower  house  of  the  new  Congress  should  be 
apportioned  among  the  several  states  on  a  basis  of  popu- 
lation. But  in  counting  the  population  of  a  state,  were 
the  slaves  to  be  counted  or  left  out?  Nothing  had  been 
said  about  that  point  when  the  Connecticut  compromise 
was  under  discussion.  The  delegates  from  South  Carolina 
were  particularly  insistent  that  the  term  "population" 
should  be  taken  to  include  all  inhabitants  whether  bond  or 
free,  black  or  white.  One  of  the  Massachusetts  delegates 
retorted  angrily  that  if  such  chattels  as  slaves  were  counted 
in  the  South,  other  such  chattels  as  horses  and  mules  should 
be  counted  in  the  North.  The  states  opposed  to  the  count- 
ing of  slaves  were  in  the  majority  and  could  have  had  then- 
way  by  boldly  asserting  it;  but,  after  a  discussion  which 
made  the  sparks  of  animosity  fly  in  showers,  they  chose 
to  meet  the  others  halfway  or  rather  more  than  halfway. 
The  outcome  was  the  arrangement  known  as  the  three- 
fifths  compromise,  by  which  it  was  agreed  that  slaves  should 
be  counted  in  determining  the  quota  o£  representation  from 


34    THE  GOVERNMENT  OF  THE  UNITED  STATES 


Illogical 
nature 
of  this 
arrange- 
ment. 


Other 
difficulties. 


each  state,  but  at  three-fifths  of  their  numerical  strength 
only.  In  other  words  a  hundred  slaves  were  to  be  counted, 
for  purposes  of  representation  in  Congress,  as  the  equivalent 
of  sixty  free  men.  Direct  taxes,  if  levied  upon  the  several 
states,  were  to  be  apportioned  on  this  same  basis. 

There  was  no  logic  in  this  compromise  except  possibly 
the  logic  of  an  awkward  situation.  A  convention  of  political 
philosophers  would  never  have  devised  it  or  agreed  to  it. 
If  slaves  were  deemed  to  be  citizens,  they  should  have  been 
counted,  head  for  head,  at  full  value ;  if  they  were  deemed 
to  be  chattels,  they  should  not  have  been  counted  at  all. 
The  three-fifths  compromise  could  not  be  defended  except  on 
the  hypothesis  that  slaves  were  neither  one  thing  nor  the 
other.  Illogical  as  it  was,  however,  this  compromise  is 
really  a  tribute  to  the  sound  political  sense  of  the  conven- 
tion. It  showed  that  there  were  practical  politicians 
at  work  on  the  new  frame  of  government,  men  who  were 
ready  to  divorce  themselves  from  logic  or  theory  if  by  so 
doing  they  could  bring  the  states  into  working  harmony 
and  thus  get  a  strong  union  established. 

But  there  were  other  questions  connected  with  slavery. 
Every  one  agreed  that  the  new  federal  government  should 
be  given  some  power  to  regulate  commerce.  The  absence 
of  such  authority  in  central  hands  had  been  a  glaring  weak- 
ness under  the  Articles  of  Confederation.  To  what  extent, 
however,  and  subject  to  what  limitations,  should  this  power 
be  given  to  the  new  Congress?  This  was  a  perplexing 
question.  If  Congress  should  be  given  unrestricted  power, 
it  might  levy  duties  not  only  on  imports  but  upon  the 
great  exports  of  tobacco,  cotton,  rice,  and  indigo,  which  the 
southern  states  were  shipping  to  Europe.  Quite  possibly, 
indeed,  the  populous  northern  states,  like  Pennsylvania,  New 
York,  and  Massachusetts,  might,  by  their  superior  repre- 
sentation in  the  new  Congress,  try  to  make  the  duties  on 
southern  exports  furnish  the  bulk  of  the  national  revenue. 
And  what  about  the  trade  in  slaves?  Slaves  were  still 
being  brought  from  the  coasts  of  Africa  in  large  numbers, 
and  the  southern  states  felt  that  the  new  Congress  should 
not  have  power,  under  color  of  regulating  trade,  to  shut 
down  upon  these  importations  of  slaves  or  to  tax  them  too 


THE  CONSTITUTION  AND  ITS  MAKERS  35 

heavily.  On  the  other  hand,  there  were  delegates  in  the 
convention,  even  from  the  South,  who  openly  expressed 
their  longing  for  the  day  when  this  brutal  and  infernal 
traffic  would  come  to  an  end.  Must  the  new  constitution, 
then,  to  satisfy  the  southern  planters,  sanctify  and  fasten 
forever  upon  the  land  the  curse  of  human  servitude  ? 

Another    compromise    solved    these    problems.     It    was  The  com- 
agreed  that  Congress  should  have  full  liberty  to  tax  imports  ™ave!trade 
but  should  be  forbidden  to  tax  exports ;   furthermore,  that  compro- 
it  should  not  be  allowed  to  prohibit  the  importation  of  l 
slaves  until  the  year  1808.     Meanwhile,  it  might  levy  a 
tax,  not  exceeding  ten  dollars  per  head,  on  all  slaves  brought 
in.     Under  this  arrangement  slaves  continued  to  come  for 
twenty  years  after  the  constitution  went  into  force,  but 
when  this  time-limit  expired,  Congress  promptly  forbade 
further  importations.     Thereafter  the  South  had  to  depend 
upon  the  natural  increase  of  its  slave  population.     In  the 
meantime,  however,  slavery  gained  an  almost  unshakable 
hold  upon  the  economic  system  of  these  southern  communi- 
ties.    What  the  loosening  of  this  iron  grip  would  ultimately 
cost  the  nation  the  framers  of  the  compromise  could  not 
have  foreseen ;   but  of  all  the  compromises  of  the  constitu- 
tion, this  was  the  most  heavily  paid  for  in  the  end. 

Various  other  questions  had  to  be  settled  before  the  other 
convention's  work  was  finished;  and  some  of  them  made  quei 
heavy  demands  upon  the'time  and  patience  of  the  members. 
The  proper  position  and  powers  of  the  chief  executive  was 
one  of  these.  The  Articles  of  Confederation  had  provided 
for  no  separate  executive;  the  Congress  possessed  both 
executive  and  legislative  powers  and  handled  its  executive 
functions  through  its  own  committees  or  through  officers 
whom  it  appointed.  This  system  of  carrying  on  the  execu- 
tive work  of  government  proved,  however,  to  be  far  from 
satisfactory.  It  was  inefficient  in  war  and  cumbersome 
in  peace.  Hence  arose  the  idea  of  making  a  place  in  the 
new  constitution  for  a  powerful  and  independent  executive 
in  the  person  of  a  President  who  would  have  dignity  and 
authority  in  keeping  with  his  position  as  the  first  citizen 
of  a  great  nation.  Yet  the  convention  felt  that  there  must 
be  care  lest  the  President's  powers  be  made  too  broad,  thus 


36        THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  final 
touches. 


The  con- 
stitution 
signed  and 
transmitted 
to  the 
several 
states  for 
ratification. 


giving  him  at  some  future  time  the  opportunity  to  become 
a  virtual  dictator  with  a  more  agreeable  name.  '>  Accord- 
ingly, the  framers  of  the  constitution  devised  a  curious 
method  of  choosing  the  President  through  the  agency  of  an 
electoral  college,  so  that  he  might  be  independent  of  Con- 
gress. As  a  weapon  of  self-defence,  moreover,  they  gave  him 
the  power  of  veto.  Likewise  they  placed  in  his  hands 
great  authority  with  respect  to  the  making  of  appointments 
and  the  negotiating  of  treaties  with  foreign  states.  But, 
on  the  other  hand,  they  hedged  the  presidential  office  with 
stern  restrictions.  A  plan  of  removal  by  impeachment 
was  provided  to  hold  him  in  leash ;  his  appointments 
were  made  subject  to  confirmation  by  the  Senate,  and 
a  two-thirds  vote  of  this  body  was  made  necessary  to 
the  ratification  of  treaties  negotiated  by  him.  The  con- 
vention, in  short,  gave  with  one  hand  and  took  away  with 
the  other. 

Many  other  problems  had  to  be  worked  over  patiently. 
Time  and  again  important  matters  were  settled,  only  to 
be  reopened  and  debated  again.  But  in  due  course  the 
various  provisions  were  ready  for  a  Committee  of  Detail, 
which  put  them  into  logical  form.  Then  they  were  gone 
over  again,  and,  after  more  alterations,  the  document  was 
ready  in  September  for  a  Committee  of  Revision.  Gouver- 
neur  Morris,  as  chairman  of  this  committee,  was  charged 
with  the  function  of  putting  the  provisions  into  terse  and 
forceful  English.  How  admirably  he  performed  this  task 
even  a  rapid  reading  of  the  document  will  disclose. 

On  September  17,  1787,  the  final  draft  of  the  constitu- 
tion was  signed  by  thirty-nine  members  of  the  convention. 
Of  the  others,  some  were  absent ;  some  refused  to  sign. 
The  constitution  was  then  sent  to  the  Congress  of  the 
Confederation  with  the  request  that  copies  be  transmitted 
to  the  legislatures  of  the  several  states,  to  be  by  them 
submitted  to  state  conventions  elected  by  the  people, 
for  ratification.  This  done,  the  convention  dissolved. 
The  members  started  for  their  own  states  to  explain 
the  new  constitution,  and  there  was  much  explaining 
to  do. 

By   diligence   and   patience   the   constitution   had   been 


THE  CONSTITUTION  AND  ITS  MAKERS  37 

framed,  but  a  bigger  task  was  still  ahead,  that  of  getting  The  great 
the  states  to  accept  it.  No  one  dared  to  hope  that  all  the  wouUUhe 
states  would  agree,  hence  it  was  provided  by  the  convention  states 
that  if  nine  states  gave  their  adhesion,  the  new  central  gov-  accept  lt? 
ernment  would  be  established.  There  were  serious  doubts, 
indeed,  whether  even  nine  states  would  concur.  The  fact 
is  that  the  members  of  the  convention  were  themselves  far 
from  being  enthusiastic  over  the  product  of  their  summer's 
labor.  Scarcely  one  of  the  thirty-nine  who  signed  the 
constitution  regarded  the  document  with  whole-hearted 
approval.  Alexander  Hamilton,  for  example,  gave  his 
signature  gladly,  but  in  doing  so  took  occasion  to  remind 
the  convention  that  no  man's  opinions  were  more  remote 
from  the  new  constitution  than  his  own.  He  was  ready  to 
accept  it  because  in  his  opinion  no  plan  of  government  could 
be  much  worse  than  that  provided  by  the  Articles  of  Con- 
federation. Benjamin  Franklin  also  had  misgivings;  but 
after  remarking  that  the  experience  of  fourscore  years  had 
taught  him  to  doubt  the  infallibility  of  his  own  judgment, 
he  placed  his  name  at  the  head  of  the  Pennsylvania  delega- 
tion. So  it  was  with  Madison,  the  man  who  had  done  most 
to  bring  things  to  an  auspicious  end.  The  new  constitu- 
tion as  finally  drafted  was  a  long  way  from  being  a  true 
reflection  of  his  clean-cut  opinions,  but  he  was  ready  to 
shoulder  his  share  of  responsibility  for  it  before  the  people. 
Some  men  of  inflexible  convictions,  among  them  Edmund 
Randolph  of  Virginia  and  Elbridge  Gerry  of  Massachusetts, 
were  so  disappointed  with  the  compromise  character  of 
the  document  that  they  would  not  sign  at  all. 

As  the  convention  had  met  behind  closed  doors  no  inkling  How  the 
of  what  the  delegates  were  doing  reached  the  people  till 
everything  was  done.  In  lieu  of  actual  information  from  received 
within  the  brick  walls,  however,  the  newspapers  circulated 
all  sorts  of  gossip  as  to  what  was  under  consideration.  Many 
of  these  rumors  were  wild,  but  even  the  wildest  among  them 
found  some  believers.  Not  a  few  honest  men  in  all  sections 
of  the  land  were  afraid  that  a  monarchy  was  being  hatched 
at  Philadelphia.  When  the  constitution  was  finally  made 
public,  it  contained,  of  course,  many  surprises.  Some 
thought  it  made  the  central  government  too  strong ;  others 


38        THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 
fault- 
finders. 


The 

struggle 
for  ratifica- 
tion in 
the  various 
states. 


that  it  did  not  make  it  strong  enough.1  From  all  quarters 
came  the  serious  and  well-founded  criticism  that  the  con- 
stitution contained  no  bill  of  rights  or  group  of  guarantees 
for  freedom  of  the  press,  freedom  of  speech,  religious  liberty, 
and  so  forth,  such  as  had  been  incorporated  in  most  of  the 
state  constitutions.  Thomas  Jefferson,  for  example,  re- 
garded this  omission  as  the  chief  defect  in  the  convention's 
work.  Some  grumbled  because  the  constitution  gave 
the  new  federal  government  power  to  issue  paper  money; 
others  because  it  took  that  right  away  from  the  states. 
Many  good  people  stigmatized  the  document  as  sacrilegious 
because  it  contained  no  mention  of  the  Deity  and  did  not 
even  require  that  office-holders  should  be  Christians.  In 
the  North  there  was  a  feeling  that  the  compromise  with 
slavery  went  too  far ;  in  the  South  it  was  regarded  as  not 
having  gone  far  enough.  The  fault-finders  were  numerous, 
and  among  them  were  many  influential  men. 

The  Congress  of  the  Confederation,  after  some  delay 
and  hesitation,  sent  copies  of  the  constitution  to  the  legisla- 
tures of  the  several  states  for  ratification.  In  no  case  did 
these  legislatures  submit  the  question  to  a  direct  popular 
vote.  They  followed  the  policy  of  asking  the  people  to  elect 
delegates  to  state  conventions  which  should  by  majority 
vote  decide  the  matter.  Conventions  in  Delaware,  Pennsyl- 
vania, and  New  Jersey  accepted  the  constitution  almost 
at  once ;  Georgia  followed  after  a  few  weeks.  Then  serious 
obstacles  began  to  appear  in  some  of  the  larger  states : 
Massachusetts,  New  York,  and  Virginia.  In  these  the 
campaign  of  opposition  became  very  bitter ;  an  avalanche 
of  criticism  was  let  loose  in  broadsides,  pamphlets,  and 
letters  to  the  newspapers.  Personal  attacks  were  launched 
against  the  leading  men  of  the  convention,  and  even  Wash- 
ington did  not  escape  the  flood  of  invective.  The  danger 
was  not  merely  that  fewer  than  nine  states  would  accept 
the  constitution,  but  that  the  refusal  of  one  or  two  of  the 
largest  states  might,  by  reason  of  their  geographical  situa- 
tion and  economic  importance,  practically  nullify  the  whole 

fl  In  Paul  Leicester  Ford's  Pamphlets  on  the  Constitution  of  the  United 
States  (Brooklyn,  1888)  will  be  found  a  collection  of  criticisms  issued  by 
various  contemporary  opponents  of  the  constitution. 


THE  CONSTITUTION  AND  ITS  MAKERS  39 

plan.  There  was  New  York,  for  example,  where  popular 
feeling  seemed  to  be  running  most  strongly  against  the 
constitution.  If  New  York  should  refuse  its  adhesion,  the 
assent  of  all  the  others  would  not  insure  the  success  of 
the  new  federation.  Geographically  New  York  lay  right 
athwart  the  country.  Four  states  were  to  the  north  of  her 
and  eight  to  the  south.  No  union  could  be  solid  without 
New  York.  Yet  in  the  closing  days  of  1787  it  was  apparent 
that  if  the  question  of  ratifying  the  constitution  were  sub- 
mitted to  the  people  of  New  York,  it  would  be  overwhelm- 
ingly rejected.  The  critical  need,  therefore,  was  for  a 
campaign  of  education  which  would  focus  the  attention  of 
the  people,  both  in  New  York  and  elsewhere,  upon  the  merits 
of  the  constitution  itself,  not  upon  the  foibles  and  failings 
of  the  men  who  had  framed  it. 

Such  a  campaign  of  education  was  accordingly  planned  The 
by  Alexander  Hamilton,  who  enlisted  for  the  work  the 
cottperation  of  James  Madison  and  John  Jay.  During  the  tion. 
winter  and  spring  of  1787-1788,  these  three  wrote  a  series 
of  letters  which  were  printed,  sometimes  three  or  four  let- 
ters a  week,  in  various  New  York  newspapers.  The  letters 
were  designed  to  show  how  necessary  some  plan  of  federal 
union  had  become  to  the  several  states  and  to  demonstrate, 
point  by  point,  that  the  new  constitution  offered  the  best 
practicable  solution  of  all  the  difficult  problems  involved. 
Each  letter  dealt  with  some  phase  of  the  subject  in  logical 
order,  explaining,  defending,  and  appealing  to  the  patriotism 
of  the  people.  All  the  letters  bore  the  common  signature 
"Publius, "  and  the  individual  authorship  of  several  of  them 
cannot  be  definitely  determined,  but  it  is  beyond  doubt 
that  the  great  majority  were  the  work  of  Hamilton  and 
Madison. 

Although  these  newspaper  expositions  of  the  new  constitu-  Value 
tion  were  written  under  pressure  and  as  campaign  polemics, 
they  set  a  high  standard  both  in  substance  and  in  style,  letters. 
Brushing  aside  all  personalities,  all  appeals  to  passion  or 
to  sectional  prejudice,  they  went  right  to  the  heart  of  every 
constitutional  question.     They  were  the  work  of  men  who 
were  brimful  of  their  subject  and  who  knew,  better  than 
any  others  of  their  time,  just  what  the  provisions  of  the 


40        THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 
Federalist. 


A  classic 
of  political 
science. 


new  constitution  expressed  or  implied.  Naturally  these 
arguments  exerted  a  great  influence  upon  the  public  mind, 
and  particularly  upon  the  minds  of  those  who  came  to 
the  state  conventions  without  any  clear  understanding  of 
what  powers  the  new  constitution  conveyed  to  the  central 
government  and  what  limitations  it  imposed.  Had  it 
not  been  for  this  vigorous  publicity  campaign,  there  is 
every  reason  to  believe  that  New  York  would  have  rejected 
the  constitution.  Even  as  it  was,  that  state  was  one  of 
the  last  to  ratify,  and  then  this  action  was  taken  by  the  nar- 
row majority  of  three  votes  in  the  state  convention. 

Even  before  all  the  letters  had  appeared  in  the  newspapers 
they  were  collected  and  printed  in  book  form  under  the 
title  of  The  Federalist.  In  that  shape  they  have  come  down 
to  us,  and  remain  to-day  the  best  contemporary  exposi- 
tion of  what  the  constitution  meant  to  the  men  who  made 
it.1  For  keenness  of  analysis,  cogency  in  the  statement  of 
arguments,  adroitness  in  reply  to  critics,  and  brilliancy 
of  style  this  volume  has  stood  unrivalled  in  the  field  of 
American  political  literature  for  one  hundred  and  thirty 
years.  Seldom  is  it  given  to  any  treatise  in  political  science 
to  hold  its  place  of  supremacy  so  long.  True  enough,  the 
book  is  not  a  trustworthy  guide  for  those  who  want  to  know 
what  the  various  provisions  of  the  American  constitution 
express  or  imply  to-day.  In  the  years  since  these  letters 
were  written  seventeen  amendments  have  been  added; 
the  courts  have  interpreted  many  clauses  in  a  way  which 
the  framers  of  the  constitution  could  never  have  foreseen, 
while  a  legion  of  political  customs  and  usages,  forming  an 
unwritten  constitution  as  it  were,  have  grown  up  around 
the  original  frame  of  national  government.  Time  in  this 
as  in  all  other  things  of  human  handiwork  has  wrought 
great  changes.  But  as  an  elucidation  of  the  basic  principles 
of  federal  government  and  of  what  is  compendiously  called 
"the  political  ideals  of  the  Fathers/'  there  is  nothing  that 
approaches  in  value  these  campaign  letters  of  Hamilton, 
Madison,  and  Jay. 

While  it  is  impossible  to  tell  with  certainty  what  would 

1  There  are  many  editions  of  The  Federalist,  but  the  best  for  most  pur- 
poses is  Paul  Leicester  Ford's  edition  (N.  Y.,  1898). 


THE  CONSTITUTION  AND  ITS  MAKERS  41 

have  happened  had  the  constitution  been  submitted  for  other  in- 
acceptance  to  the  direct  vote  of  the  people  in  the  vari-  fluences 

.  A        A  responsible 

ous  states,  there  is  every  reason  to  think  that  it  would  have  for  the 


been  rejected.     At  the  hands  of  conventions  it  had  a  far 

better  chance  of  ratification  because  in  none  of  the  states  tution  by 

save  New  York  were  the  delegates  to  these  conventions  the  states- 

chosen  on  a  basis  of  manhood  suffrage.     In  all  the  remaining 

states  there  were  property  or  other  qualifications  for  voting, 

and  the  propertied  classes  were,  on  the  whole,  favorably  dis-  Attitude  of 

posed  towards  the  constitution.     It  has  been  demonstrated, 

in  fact,  that  most  of  the  men  who  framed  the  constitution 

were  themselves  the  owners  of  public  bonds  and  other  forms 

of  property  which  were  likely  to  gain  in  value  if  a  strong 

federal  government  could  be  established.     In  the  various 

state  conventions,  moreover,  it  was  the  delegates  from  the 

towns,  the  representatives  of  the  mercantile  and  trading 

classes,  who  lined  up  most  strongly  in  favor  of  ratification. 

The  constitution  drew  its  chief  support  from  the  well-to-do, 

the  merchants  and  ship-owners,  the  men  of  education,  - 

in  a  word  from  that  part  of  the  population  which  lived  in 

the  better-settled  parts  near  the  seacoast.     The  people  of 

the  interior  and  sparsely  settled  areas,  the  struggling  farmers 

and  pioneers,  were,  on  the  whole,  opposed  to  it.     There  were 

exceptions,  of  course,  but  this  indicates  the  broad  line  of 

division.1 

The  constitution  was  not  carried  into  operation,  there-  Theargu- 
fore,  on  any  tidal  wave  of  popular  enthusiasm.     Its  sup-  which  pre- 
porters  did  not  make  their  chief  appeal  by  extolling  the  vailed. 
democratic   features   of  the  document  ;    on  the   contrary, 
they  placed  their  reliance  upon  arguments  which  could  make 
little  impression  except  upon  the  minds  of  thinking  men. 
They  tried  to  show  that  its  acceptance  would  establish  a 
safe  government,   a  well-balanced  government,   a  govern- 
ment able  to  maintain  order  within  and  security  without, 
a   government   which   would   insure   economic   prosperity. 
In  our  own  time  we   are  occasionally   told   that   the   na- 

•  For  further  information  on  this  important  point  see  O.  G.  Libby, 
The  Geographical  Distribution  of  the  Vote  ...  on  the  Federal  Constitution 
(Madison,  1894)  and  C.  A.  Beard's  Economic  Interpretation  of  the  Consti- 
tution (N.  Y.,  1913). 


42        THE  GOVERNMENT  OF  THE  UNITED  STATES 

tional  constitution  is  a  reactionary  document,  framed  in 
the  first  instance  by  men  who  had  no  faith  in  popular  gov- 
ernment, and  that  even  in  the  days  of  its  origin  it  did  not 
reflect  the  political  ideals  of  the  people.  That  is  in  part 
true ;  in  part  false. 

Why  the  The  constitution  was  framed  and  adopted  at  a  time  when 

Son  TO"  business  conditions  were  bad  and  the  national  outlook  un- 
not  more  promising.  Men  who  had  just  won  their  independence  were 
radical.  feeling  the  deep  responsibility  that  went  with  nationhood. 
Quite  naturally  the  constitution  was  not  _  so  completely  im- 
bued with  ujlrardemacratic  prmSples_as  would  have  been  a 
fundamental  law  framed  ten  years  before,  by  the  men  who 
signed  the  Declaration  of  Independence,  for  example.  Only 
six  of  the  fifty-six  who  signed  the  Declaration  had  a  hand 
in  making  the  constitution.  Moreover,  the  framers  of  the 
constitution  had  to  keep  constantly  in  mind  the  fact  that 
their*  work  must  go  before  the  representatives  of  the  people, 
and  that  whatever  theories  of  government  individual  mem- 
bers of  the  constitution  may  have  held,  these  could  not  safely 
be  given  unchastened  play.  Be  it  undemocratic  or  otherwise 
to  the  eyes  of  the  twentieth  century  radical,  this  constitu- 
tion was  incomparably  the  most,  democratic  achievement  of 
alLjthe_jDenturies  down  to •  its  day.  No  leading  nation  of 
Europe  in  1787  had  a  written  constitution  of  any  sort ; 
nor,  with  the  single  exception  of  England,  did  any  have 
even  the  forms  of  popular  government.  The  new  Ameri- 
can constitution  provided  a  scheme  of  government  which 
was  much  more  democratic  than  that  which  England 
possessed  at  the  time  and  far  more  democratic  than  that 
which  any  land  had  ever  possessed  at  any  previous  time. 

The  original  constitution  of  the  United  States,  like  any 
other  product  of  human  hands,  must  be  judged  in  the  light 
of  its  own  day,  which  was  a  day  with  scarcely  a  glimmer  to 
lighten  the  darkness  of  political  despotism  in  nearly  all 
parts  of  the  world.  Let  it  be  remembered,  again,  that  this 
document,  as  has  been  well  said,  was  the  expression  not 
only  of  political  faith  but  of  political  fears.  Its  framers 
desired  to  establish  a  government  which  would  be  a  bulwark 
of  popular  liberty ;  but  they  also  wanted  one  that  would 
defend  the  nation's  borders,  keep  peace  within  the  land,  and 


THE   CONSTITUTION  AND  ITS  MAKERS  43 

pass  its  blessings  on  to  posterity.  Let  the  political  annals 
of  four  generations  testify  whether  or  not  they  acted  wisely 
and  well. 

They  established,  in  any  event,  the  foundations  of  a 
nation  which  has  shown  itself  able  to  preserve  democracy  at 
home  and  to  fight  for  it  abroad.  They  deserve  the  fame 
and  gratitude  that  history  has  given  them.  "Leaders 
of  the  people  by  their  counsels,  wise  and  eloquent  in  their 
instructions,  all  these  were  honored  in  their  generations  and 
were  the  glory  of  their  times.  .  .  .  With  their  seed  shall 
continually  remain  a  good  inheritance,  and  their  children 
are  within  the  covenant.  .  .  .  Their  glory  shall  not  be 
blotted  out.  .  .  .  Their  bodies  are  buried  in  peace,  but 
their  name  liveth  forevermore.  The  people  will  tell  of 
their  wisdom  and  the  congregation  will  show  forth  their 
praise."  1 

But  to  return  to  the  final  ratification.     It  will  be  re-  The  con- 
called  that  the  constitution  was  to  go  into  force  whenever  g^y011 
nine  states  should  have  accepted  it.     By  midsummer  of  ratified. 
1788   the   necessary   nine  had  been   secured;    the   others 
drifted  in  one  by  one.     North  Carolina  did  not  give  assent 
till  the  autumn  of  1789,  however,  and  Rhode  Island  delayed 
ratification  until  the  spring  of  1790. 

The  Congress  of  the  Confederation,  which  had  prolonged  The  new 
its  feeble  existence  during  all  these  turmoils,  now  issued  a  f  ov6^^ 
call  to  the  various  states  to  choose  presidential  electors,  installed, 
senators,   and   congressmen ;    likewise,  it  designated  New 
York  as  the  temporary  seat  of  the  new  government,  and 
then  itself  went  out  of  existence.     Ten  states  responded 
by  choosing  electors,  and  these  electors  in  due  course  chose 
Washington  as  President  and  John  Adams  as  Vice-President 
of  the  union.     Likewise,  they  each  chose  their  quota  of 
senators  and  representatives  in  the  way  prescribed.     The 
new  government  took  office  on  April  30,  1789. 

1  Ecclesiasticus  (Apocrypha)  44 :  4-13. 


CHAPTER  IV 

"THE  SUPREME  LAW  OF  THE  LAND" 

THE  constitution  of  the  United  States,  to  use  its  own 
words,  is  "the  supreme  law  of  the  land."  It  is  a  short 
document,  as  constitutions  go,  and  more  concise  than  the 
constitution  of  any  other  nation  or  of  any  among  the  forty- 
eight  states  of  the  union.  Therein  it  satisfies  the  first 
though  not  the  second  of  the  requirements  once  stipulated 
by  Napoleon  Bonaparte,  that  a  good  constitution  should  be 
"short  and  obscure."  To  read  it  through  takes  about 
twenty  minutes.  In  arrangement  it  consists  of  a  pre- 
amble and  seven  articles  of  unequal  length,  to  which  seven- 
teen amendments  have  since  been  added.  The  three  chief 
articles  deal  respectively  with  the  legislative,  the  execu- 
tive, and  the  judicial  organs  of  government ;  the  others 
with  miscellaneous  matters,  such  as  interstate  relations,  the 
admission  of  new  states,  the  methods  of  amendment,  and 
the  arrangements  for  its  own  ratification.  Viewing  the 
provisions  of  the  constitution  as  a  whole,  certain  fundamental 
considerations  stand  out  prominently,  and  these  will  be 
briefly  recapitulated.1 

1  The  fundamental  principles  of  the  American  constitution  have  been 
expounded  at  great  length  by  many  able  writers.  Joseph  Story's  Com- 
mentaries on  the  Constitution  (5th  ed.,  2  vols.,  Boston,  1891)  contains  what 
may  well  be  termed  the  classic  exposition.  W.  W.  Willoughby's  Consti- 
tutional Law  of  the  United  States  (2  vols.,  N.  Y.,  1910)  is  less  philosophical 
and  far  more  closely  in  touch  with  the  conditions  of  to-day.  Another 
well-known  commentary,  J.  I.  C.  Hare's  American  Constitutional  Law 
(2  vols.,  Boston,  1889),  includes  an  able  treatment  of  some  difficult  con- 
stitutional questions,  and  mention  should  also  be  made  of  Roger  Foster's 
Commentaries  on  the  Constitution  of  the  United  States,  of  which  only  the 
first  volume  was  issued  (Boston,  1895).  John  R.  Tucker's  Constitution 
of  the  United  States  (2  vols.,  Chicago,  1899)  gives  the  Southern  point  of 
view  on  controverted  questions.  Among  the  smaller  manuals  the  most 
useful  are  W.  W.  Willoughby's  Constitutional  Law  (N.  Y.,  1912)  and  Emlin 

44 


"THE  SUPREME  LAW  OF  THE  LAND"  45 

In  the  first  place  the  constitution  is  a  grant  of  powers.  1.  The 
It  emanated  from  states  which  desired  union  but  not 
unity.  To  that  end  they  gave  over,  by  mutual  consent  of  powers, 
and  irrevocably,  certain  powers  which  had  hitherto  been 
included  in  their  own  attributes  of  sovereignty.  They 
created  a  new  government,  endowed  it  with  definite  powers, 
and  made  it  sovereign  within  its  own  sphere.  But  the  new 
federal  government  received  only  such  powers  as  were 
expressly  or  by  reasonable  implication  conveyed  to  it  by 
the  specific  provisions  of  the  constitution.  All  other  au- 
thority was  reserved  to  the  states  themselves,  and  any  oc- 
casion for  doubt  on  that  point  was  speedily  set  at  rest  by 
the  tenth  amendment.1  The  proper  allocation  of  powers 
to  the  Union  and  the  states  respectively  was  a  matter  of 
supreme  importance,  for  upon  this  more  than  upon  all  else 
the  success  of  the  new  constitution  would  ultimately  de- 
pend. 

There  had  been  federal  governments  in  other  countries  be-  A  balanced 
fore  1787,  but  their  history  had  been  one  of  failure,  partial  adjustment 
or  complete.  Either  the  federal  government  had  in  each  authority, 
case  received  too  little  power  and  hence  had  perished  from 
general  debility,  or  it  had  been  allowed  so  much  authority 
that  it  proved  able  to  crush  out  the  governments  of  its 
component  parts.  The  framers  of  the  constitution  strove 
to  guard  against  both  these  eventualities.  They  gave  large 
powers  to  the  new  federal  government,  but  not  too  large. 
They  tried  to  assure  it  a  reasonable  revenue,  but  did  not  give 
it  unlimited  power  to  tax ;  they  gave  it  power  to  borrow ; 
they  empowered  it  to  regulate  foreign  and  interstate  com- 
merce, to  provide  an  army  and  navy,  to  establish  and  main- 
tain a  postal  service,  and  to  do  various  other  things  which 
the  common  welfare  of  all  the  states  seemed  to  demand. 
But  on  the  other  hand  they  reserved  to  the  states  the  whole 

McClain's  Constitutional  Law  in  the  United  States  (N.  Y.,  1905).  For 
short  discussions  on  various  topics,  with  well-chosen  lists  of  further  ref- 
erences, the  reader  may  be  referred  to  the  Cyclopedia  of  American  Govern- 
ment, edited  by  Andrew  C.  McLaughlin  and  Albert  Bushnell  Hart  (3  vols., 
N.  YM  1914). 

1  "  The  powers  not  delegated  to  the  United  States  by  the  constitution, 
nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states,  respectively, 
or  to  the  people." 


46        THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  powers 
'in  detail. 


Does  the 
partition- 
ing of  gov- 
ernmental 
powers 
mean  weak 
govern- 
ment? 


field  of  civil  and  criminal  law,  the  regulation  of  trade  within 
their  own  bounds,  the  "police  power,"  and  the  whole  great 
list  of  other  functions  which  the  state  government  exercises 
to-day. 

Here  are  the  chief  general  powers  given  by  the  constitu- 
tion to  the  federal  government  and  alongside  them  are 
placed  some  of  the  most  important  things  left  largely  or 
wholly  to  the  jurisdiction  of  the  several  states : 


FEDERAL  POWERS 

1.  Taxation  for  federal  pur- 

poses. 

2.  Borrowing    on    the    na- 

tion's credit. 

3.  Regulation  of  foreign  and 

interstate  commerce. 

4.  Currency  and  coinage. 

5.  Foreign     relations     and 

treaties. 

6.  Army  and  navy. 

7.  Postal  service. 

8.  Patents  and  copyrights. 

9.  Regulation    of    weights 

and  measures. 
10.  Admission  of  new  states. 


STATE  POWERS 


pur- 


1.  Taxation  for  local 

poses. 

2.  Borrowing   on    state's 

credit. 

3.  Regulation     of     trade 

within   the   state. 

4.  Civil  and  criminal  law. 

5.  The  "police  power." 

6.  Education. 

7.  Control  of  local  govern- 

ment. 

8.  Charities  and  correction. 

9.  Suffrage  and  elections. 
10.  Organization  and  control 

of  corporations. 


Federalism,  it  is  sometimes  said,  means  weak  govern- 
ment.1 It  distributes  powers  among  several  governments 
instead  of  concentrating  them  all  into  one  strong  hand. 
From  their  nature,  then,  federal  states,  whether  they  be 
monarchies  or  republics,  are  inferior  in  vigor  and  strength 
to  centralized  or  unitary  states.  In  the  actual  workings 
of  federalism  this  may  not  be  true,  because  inherent  weak- 
ness may  be  more  than  offset  by  other  factors  which  make 
for  strength.  In  the  United  States  it  has  not  been  true. 
The  national  government  here  developed  through  its  hold 
on  the  loyalty  of  the  people  a  degree  of  strength  and  stability 
which  has  served  to  offset  the  intrinsic  weakness  of  a  federal 

1  A.  V.  Dicey,  Introduction  to  the  Study  of  the  Law  of  the  Constitution 
(8th  ed.,  N.  Y.,  1915),  p.  167. 


"THE  SUPREME  LAW  OF  THE  LAND"  47 

system.  Whether  a  government  will  be  strong  or  weak 
depends  more  upon  the  political  genius  of  its  people  than 
upon  the  form  of  its  constitution.  It  depends  also  upon 
the  natural  resources  of  the  country,  the  spirit  of  the  laws, 
and  upon  the  political  traditions  that  are  developed.  If 
a  federal  government  proves  weak,  it  cannot  be  attributed 
to  the  system  alone. 

The  form  of  government  established  by  the  constitution  A  federal 
through  its  partitioning  of  authority  is  a  "federal  republic/'  rePublic- 
in  other  words  a  republic  of  republics  or  a  federation  of 
states.  The  adoption  of  this  form  was  made  necessary  by 
geographical  conditions  and  historical  antecedents  alike. 
No  unitary  republic,  with  all  final  powers  lodged  in  the 
hands  of  the  central  authority,  would  have  been  practicable 
under  the  circumstances  as  they  existed  in  1787,  and  the 
convention  did  not  consider  any  such  proposal.  Federal 
republics  had  been  established  in  previous  times,  but  never 
on  so  large  a  scale  as  this.  Here  was  the  world's  first 
great  experiment  in  federal  republicanism. 

A  second   fundamental   characteristic   of  the  American  2.  The 
constitution  is  .its  recognition  of  what  has  commonly  been 
called  the  principle  of  "division  of  powers"  or  of  "checks  and 
and  balances";    in  other  words  the  idea  that  the  three  balance8- 
organs  of  government  —  legislative,  executive,  and  judicial 
—  should  be   kept   distinct   and  independent   and   should 
each  act  as  a  check  on  the  others.     The  executive  should 
never  legislate  nor  should  the  legislature  ever  attempt  to 
administer  its  own  laws.     The  courts,  again,  should  enforce 
the  laws  of  the  land  but  should  have  no  hand  in  making 
them. 

This  interesting  doctrine  has  been  generally  associated  Derived 
with    a   French   writer,    Baron    Montesquieu,    whose   two  ^ntes- 
volumes  on  The  Spirit  of  Laws  appeared  about  1748.     But  quieu. 
"the  general  idea  of  differentiating  the  functions  of  govern- 
ment is  as  old  as  Aristotle.     Montesquieu  merely  gave  it 
a  broader  and  more  emphatic  expression,  and  through  his 
writings  the  leaders  of  political  thought  in  America  were 
impressed  by  it.     Here  is  the  doctrine  in  Montesquieu's 
own  words : 

"Political  liberty  is  to  be  found  only  in  moderate  govern- 


48        THE  GOVERNMENT  OF  THE  UNITED   STATES 


Montes- 
quieu's own 
statement 
of  the 
doctrine. 


His  influ- 
ence upon 
the  framers 
of  the 
constitu- 
tion. 


ments ;  even  in  these  it  is  not  always  found.  It  is  there 
only  when  there  is  no  abuse  of  power.  But  constant  experi- 
ence shows  us  that  every  man  invested  with  power  is  apt 
to  abuse  it,  and  to  carry  his  authority  as  far  as  it  will  go. 
Is  it  not  strange,  though  true,  to  say  that  virtue  itself  has 
need  of  limits  ?  To  prevent  this  abuse,  it  is  necessary  from 
the  very  nature  of  things  that  power  should  be  a  check  to 
power.  ...  In  every  government  there  are  three  sorts 
of  power :  the  legislative,  the  executive.  .  .  .  and  the  judi- 
ciary power.  .  .  .  When  the  legislative  and  executive 
powers  are  united  in  the  same  person,  or  in  the  same  body 
of  magistrates,  there  can  be  no  liberty.  .  .  .  Again,  there 
is  no  liberty,  if  the  judiciary  power  be  not  separated  from 
the  legislative  and  executive." 

Montesquieu's  doctrine  was  widely  accepted  by  the  lead- 
ers of  public  opinion  in  the  various  states  during  the  last 
two  decades  of  the  eighteenth  century.  John  Adams  was 
a  firm  believer  in  its  soundness  and  embodied  it  in  the  con- 
stitution of  Massachusetts.  The  most  influential  members 
of  the  constitutional  convention  of  1787  accepted  it  as 
gospel.  "No  political  truth,"  wrote  Madison,  "is  of  greater 
intrinsic  value.  .  .  .  The  accumulation  of  all  powers, 
legislative,  executive  and  judiciary,  in  the  same  hands, 
whether  of  one,  a  few,  or  many,  and  whether  hereditary, 
self-appointed,  or  elective,  may  justly  be  pronounced  the 
very  definition  of  tyranny."  2  Hence,  while  no  express 
statement  of  Montesquieu's  principle  was  incorporated 
in  thex  national  constitution,  the  separation  therein  of  legis- 
lative, executive,  and  judicial  provisions  into  three  separate 
articles  and  the  establishment  of  divers  checks  and  balances 
prove  that  the  doctrine  was  held  clearly  in  mind.3 

Why  should  the  writings  of  a  French  philosopher  have 
had  such  an  influence  upon  the  structure  of  American 
government?  One  reason  is  that  the  doctrine  seemed  to 
fit  in  precisely  with  the  experience  of  colonial  America. 

1  The  Spirit  of  Laws,  Book  XI,  chs.  4-6,  passim. 

2  The  Federalist,  No.  47. 

3  John  Adams  of  Massachusetts,  a  loyal  apostle  of  Montesquieu,  was 
able  to  find  no  fewer  than  eight  separate  "checks  and  balances"  in  the 
constitution.     See  John  Adams,  Works  (10  vols.,  Boston,  1850-1856),  Vol. 
vi,  p.  467. 


"THE  SUPREME  LAW  OF  THE  LAND"       49 

The  colonists  had  repeatedly  protested  against  the  inter-  Reasons 
X     ference  of  their  colonial  governors  in  the  matters  of  legisla-  ?°*"thls 

X  111  •  i  influence 

)    tion,  and  there  had  been  many  conflicts  over  the  indepen-  although 
/    dence  of  the  colonial  judges.     On  the  whole,  it  looked  as  ^st^ed^ 
most  of  the  political  troubles  of  the  colonial  era  upon  a^mis- 
had  arisen  from  a  failure  to  keep  these  organs  of  government  concePtlon- 
from  encroaching  upon  the  prerogatives  of  one   another. 
It  was  not  realized  by  those  who  so  readily  accepted  the 
theory  of  the  separation  of  powers,  however,  that  Montes- 
quieu's teachings  were  based  largely  upon  a  misconception 
of  existing  English  government.     The  Bourbon  despotism 
of  his  own  country  seemed  to  Montesquieu  to  be  the  result 
of  concentrating  all  powers  in  one  centre,  namely,  in  the 
monarch's  hands  ;  his  ideal  of  what  a  free  government  ought 
to  be  was  the  government  of  England  under  the  Hanoverians. 

So  far  as  France  was  concerned,  Montesquieu  was  right ; 
but  as  regards  England,  he  was  wrong.  In  France  the 
boast  imputed  to  Louis  XIV,  "L'etat  c'est  moi,"  expressed 
no  mere  fiction  of  royal  power.  The  king  was  the  state; 
he  made  the  laws  by  royal  decree,  enforced  them,  and  sent 
men  to  prison  by  his  personal  orders.  All  governmental 
power  was  centralized  in  him.  In  England  the  political 
situation  during  the  second  half  of  the  eighteenth  century 
was  very  different.  There  the  king  had  no  such  unrestrained 
authority.  Yet  the  principle  of  checks  and  balances  was 
not  really  embodied,  as  Montesquieu  thought,  in  the  Eng- 
lish government  of  his  day ;  the  legislature  there  dominated 
and  controlled  the  executive.  Montesquieu  was  looking 
at  the  ancient  theory  of  English  government  which  gave 
the  crown  a  position  of  executive  independence;  he  was 
unmindful  of  the  actual  facts  of  English  government  which 
gave  parliament,  through  a  ministry  responsible  to  it,  the 
power  to  control  the  actions  of  the  crown.  The  fatherg 

Despite   the   rancor  which  remained  in  their  hearts   as  of  the  con- 
the  natural  result  of  the   Revolution,  the  political  leaders 
of    1787    admired  the  spirit  and  the  institutions  of  Eng-  did  not 
lish  government.     It  is  no   wonder  that  they  did.     Brit-  *£*$ 
ain    alone  of   all  great    countries   had   at   that   time  even  English 
a  pretence  of  free  government.     Alone  among  the  nations  8Q^f™  of 
the  United  Kingdom  loomed  up  as  the  shadow  of  a  great  ment. 


50        THE  GOVERNMENT  OF  THE  UNITED  STATES 


They  over- 
looked the 
most  dis- 
tinguishing 
feature  of 
English 
government 
—  the 
cabinet. 


Complete 

separation 

of  powers 

neither 

practicable 

nor 

desirable. 


rock  in  a  weary  world  of  despotisms.  Yet  even  James 
Madison,  with  all  his  political  erudition,  did  not  really  under- 
stand the  true  spirit  of  the  government  under  which  he  was 
born.  Neither  he  nor  Washington,  nor  Hamilton,  nor 
Franklin,  much  less  the  minor  lights  of  the  constitutional 
convention,  had  any  real  appreciation  of  the  great  hiatus 
which  already  existed  between  the  theory  and  the  practice 
of  English  government.  To-day  this  gap  has  become  so 
conspicuous  that  no  elementary  student  of  the  subject 
ever  misses  it.  In  legal  fiction  the  crown  remains  the  chief 
executive,  an  independent  "estate  of  the  realm/7  as  the 
phrase  goes,  with  all  its  time-hallowed  prerogatives.  In 
actual  fact,  however,  the  crown  is  the  mere  creature  of  parlia- 
ment, doing  as  it  is  told  and  possessing,  as  was  once  said 
in  another  connection,  "  neither  eyes  to  see  nor  tongue  to 
speak"  save  as  parliament  may  command.  In  1787  the 
supremacy  of  parliament,  although  not  so  clearly  marked 
as  to-day,  was  established  beyond  any  question,  but  the  men 
who  made  the  constitution  of  the  United  States  failed 
to  see  it.  They  were  misled  by  the  husks  of  legal  fiction 
which  obscured  the  kernels  of  actual  fact. 

Hence  it  was  that  they  gave  little  attention  to  what  had 
already  become,  without  the  enactment  of  a  single  law, 
the  most  distinguishing  feature  of  English  government  — 
the  responsible  cabinet.  When  they  thought  of  the  execu- 
tive branch  of  English  government,  they  had  their  minds  on 
the  crown,  not  on  the  cabinet.  They  did  not  realize  that 
even  in  their  own  day  the  prime  minister  was  the  master 
of  the  crown  and  the  servant  of  parliament,  and  hence  that 
all  clean-cut  separation  of  powers  between  executive  and 
legislative  organs  of  government  had  vanished.  That  is 
why  it  may  properly  be  said  that  the  system  of  checks  and 
balances,  as  woven  into  the  American  constitution  by  its 
framers,  was  the  outcome  of  a  misconception.  Its  accept- 
ance sanctified  an  error. 

In  the  form  which  Montesquieu  gave  it,  moreover, 
the  theory  is  unworkable.  The  absolute  independence  of 
the  three  great  departments  of  government  would  bring 
administration  to  a  standstill.  There  must  be  points  of 
contact.  Even  the  framers  of  the  constitution  realized 


"THE  SUPREME  LAW  OF  THE  LAND"  51 

this  and  so  made  no  attempt  to  secure  complete  sepa- 
ration of  powers.  They  gave  to  the  Senate,  for  example, 
the  right  to  withhold  its  confirmation  of  appointments, 
thereby  awarding  it  a  share  in  the  exercise  of  executive 
power.  On  the  other  hand,  they  gave  the  President,  through 
his  veto,  the  power  to  exercise  a  check  on  legislation.  Madi- 
son, moreover,  was  at  great  pains  to  point  out,  when  the 
constitution  was  before  the  states  for  acceptance,  that 
Montesquieu  himself  had  not  urged  complete  separation 
of  powers.  The  French  philosopher's  dogma,  as  "illus- 
trated by  the  example  of  his  eye,"  aimed  merely  to  secure 
broad  lines  of  separation  and  did  not  seek  to  preclude  slight 
overlappings  of  jurisdiction.  In  this  interpretation  Madi- 
son was  right,  although  it  would  have  been  much  better, 
on  the  whole,  if  he  and  his  colleagues  in  the  convention  had 
carried  their  broad  interpretation  of  Montesquieu's  doctrine 
a  great  deal  further. 

The  notion  that  there  can  be  no  liberty  without  a  separa-  is  the 
tion  of  governmental  powers,  without  a  system  of  checks  *hecSa 
and  balances,  is  one  that  might  easily  be  expected  to  find  balances 
favor  a  century  ago  ;  to-day  it  is  far  from  commanding  gen-  sound? 
eral  acceptance  by  students  of  political  science.  The  fed- 
eral governments  of  Canada  and  Australia,  for  example, 
with  no  separation  of  powers,  have  demonstrated  Montes- 
quieu's dread  of  centralization  to  have  been  in  large  measure 
imaginary.  It  is  impossible  to  say,  of  course,  whether  the 
United  States  would  have  fared  better  or  worse  under  a 
constitution  framed  by  men  who  knew  not  Montesquieu ; 
but  there  are  many  thoughtful  Americans  who  nowadays 
believe  that  the  theory  of  checks  and  balances  is  a  delusion 
and  a  snare,  that  it  has  made  for  confusion  in  the  actual 
work  of  government,  that  it  divides  responsibility,  encour- 
ages friction,  and  has  balked  constructive  legislation  on 
numberless  occasions.  On  the  other  hand,  the  doctrine 
still  retains  its  stanch  friends  who  point  out  that  some 
system  of  restraint  must  be  placed  on  all  governmental 
authority.  In  England  the  main  reliance  for  holding  the 
supreme  will  of  parliament  in  leash  is  placed  upon  public 
opinion ;  but  in  the  United  States  with  a  wide  variation 
of  geographical  interests  and  a  polyglot  population,  it  may 


52        THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.  The 
doctrine 
of  judicial 
supremacy 


Did  the 
framers  in- 
tend to 
make  the 
Supreme 
Court  the 
guardian 
of  the  con- 
stitution? 


be  that  some  more  rigid  check  is  needed  than  public  opinion 
could  ever  be  expected  to  supply. 

The  third  fundamental  of  the  American  constitution  is  the 
doctrine  of  judicial  supremacy.1  In  every  sovereign  state 
there  must  be  "a  supreme  authority  whose  determinations 
are  final  and  not  subject  to  any  recognized  power."  In 
England  this  supremacy  rests  with  parliament,  which  can 
do  whatever  it  will  so  long  as  it  keeps  within  the  bounds  of 
..what  is  humanly  possible.  No  executive  can  veto  the  acts 
of  parliament,  no  British  court  declare  them  unconstitu- 
tional. In  the  French  Republic,  although  there  is  a  written 
constitution,  no  court  can  set  aside  the  mandate  of  the  Senate 
and  the  Chamber  of  Deputies  when  they  act  in  accord. 
These  two  countries,  Britain  and  France,  have  accepted 
the  doctrine  of  legislative  supremacy.  But,  in  the  United 
States,  that  is  just  what  the  framers  of  the  constitution 
sought  to  avoid.  Experience  with  repressive  acts  of  the 
English  parliament  in  the  days  before  the  Revolution  had 
impressed  upon  them  the  belief  that  it  is  the%  habit  of  all 
legislatures  to  become  tyrannical,  and  it  was  not  their  pur- 
pose, as  one  of  them  put  it,  "to  create  an  elective  despotism " 
on  this  side  of  the  Atlantic. 

Yet  final  authority,  as  has  been  said,  must  in  all  govern- 
ments be  placed  somewhere.  So  it  was  placed  in  the 
constitution  itself ,  which  was  declared  to  be  the  "  supreme 
law  of  the  land."  But  that  was  not  enough.  A -written 
constitution  is  not  of  itself  a  living,  growing  organism,  able 
to  keep  step  with  the  needs  of  an  expanding  nation.  It 
must  contain  within  itself  some  provision  for  giving  it  growth 
and  flexibility.  The  framers  of  the  American  constitution 
avowedly  recognized  this  not  merely  by  making  the  docu- 
ment a  judicious  mixture  of  definiteness  in  principle  with 
elasticity  in  details,  but  of  inserting  two  alternative  plans 
for  adding  amendments.  Did  they  also  have  it  in  mind 
to  give  the  Supreme  Court  the  function  of  guarding 
the  constitution,  interpreting  it,  and  declaring  null 
any  act  of  Congress  that  might  overstep  the  allotted 
bounds  of  federal  power?  Did  they  have  clearly  in 

1  For  a  full  discussion  of  this  topic,  see  C.  G.  Haines,  The  American 
Doctrine  of  Judicial  Supremacy  (N.  Y.,  1914). 


"THE  SUPREME   LAW  OF  THE  LAND"  53 

mind  the  idea  of  judicial  as   contrasted   with   legislative 
supremacy  ? 

Whether  they  had  such  an  intent  or  not  is  a  question  it  has,  at 
too  involved  for  discussion  here.     Much  has  been  written 
about  it.     Two  things,  however,  are  certain.     One  is  that\ 
the  Supreme  Court  is  not  endowed  with  its  nullifying  powers  j 
by  any  provision  of  the  constitution.     Early  in  the  con-J 
vention's  deliberations  a  proposition  was  ma3e^  lollstablish 
a  council  of  revision  made  up  of  the  executive  and  a  conven- 
ient number  of  Supreme  Court  judges  whose  duty  it  should 
be  to  examine  every  act  of  Congress  and  whose  dissent  from 
any  act  should  nullify  it  unless  the  act  were  subsequently 
ree'nacted  by  a  two-thirds  vote.     But  this  proposal  was  re- 
jected, and  the  veto  power  was  finally  intrusted  to  the  execu- 
tive alone,  nothing  being  settled  definitely  as  to  the  authority 
of    the    judges    to    declare    a    law    unconstitutional.      The 
other  certainty  is  that  the  Supreme  Court  in  due  course 
assumed  the  power  to  declare  laws  unconstitutional  and  \ 
unequivocably  possesses  that  power  to-day.     The  doctrine  j 
of  judicial  supremacy  is  therefore  a  fundamental  fact  of  | 
American  constitutional  government.     Whether  the  framers 
of  the  constitution  intended  it  to  be  so  is  now  an  academic 
question,  hardly  worth  further  controversy.1     Many  other 
lands  have  written  constitutions  as  their  supreme  law,  and 
they  have  supreme  courts  as  well,  but  in  none  of  them  has 
a  supreme  court  ever  undertaken  to  declare  unconstitutional 
any  act  of  the  national  legislature, 

One  other  feature  distinguishes  the  constitution  of  the  4.  The 
United  States  from  those  of  some  other  countries,  from  the  *onstl  °f 
constitutions  of  Canada  or  of  Australia,  for  example.     Both  tutionai 
of  these  latter  are  federations  of  Anglo-Saxon  origin,  and 
their  respective   constitutions  have  borrowed  much  from 
the  United  States,  but  in  neither  case  have  they  accepted 
the  American  theory  of  "constitutional  limitations."     The 
constitutions    of    Canada    and   Australia   merely   establish 
organs  of  federal  government  and  allot  powers ;    the  con- 
stitution of  the  United  States  not  only  does  these  things, 
but  it  also  places  express  limitations  upon  both  the  national 

1  For  a  summary  of  the  matter  see  C.  A.  Beard,  The  Supreme  Court  and 
the  Constitution  ;£&  Y>,  1912) , 


54        THE  GOVERNMENT  OF  THE  UNITED  STATES 


Constitu- 
tion 

contained 
few  wholly 
new 
principles. 


And  few 
practical 
innovations. 


and  state  governments.  It  enumerates  various  things 
which  no  government  may  do,  such  as  condemning  men  to 
death  by  legislative  process,  or  taking  private  property 
without  just  compensation.  Hence  no  government  in  the 
United  States,  whether  national  or  state,  is  absolutely 
sovereign.  They  are  sovereign  only  within  the  limits  of 
the  constitution.  The  only  absolutely  sovereign  authority 
in  America  is  that  authority  which  can  change  the  federal 
constitution,  namely,  two-thirds  of  the  members  of  both 
houses  of  Congress  and  a  majority  of  the  members  in  each 
of  three-fourths  of  the  state  legislatures  acting  in  accord, 
or,  alternatively,  a  majority  of  the  members  of  a  national 
convention  together  with  a  majority  of  the  members  in 
each  of  three-fourths  of  the  state  legislatures,  all  acting  in 
accord.  Whether  all  the  limitations  which  appear  in  the 
constitution  of  the  United  States  have  really  served  a  useful 
purpose  is  a  matter  to  be  discussed  in  another  chapter ;  they 
form,  at  any  rate,  a  distinctive  feature  of  the  document. 

These  are  the  fundamental  doctrines  of  the  national 
constitution.  No  one  of  them  was  wholly  new  even  in 
1787.  The  idea  of  a  written  constitution  as  a  grant  of  powers 
is  as  old  as  the  Lycian  Confederacy ;  the  theory  of  separa- 
tion of  powers  harks  back  to  Polybius  and  Aristotle.  The 
doctrine  of  judicial  supremacy  and  the  idea  of  constitutional 
limitations  were  both  evolved  out  of  hazy  notions  concern- 
ing the  paramountcy  of  the  common  law  in  colonial  times, 
and  for  the  former  there  were  well-defined  precedents  before 
the  Revolution.  When,  after  the  constitution  had  been 
some  time  in  operation,  the  Supreme  Court  announced 
its  right  to  declare  an  act  of  Congress  unconstitutional, 
it  impressed  the  people  as  doing  nothing  revolutionary. 
At  common  law  any  act  done  by  any  official  beyond  the 
limits  of  his  legal  jurisdiction  was  void.  The  doctrine 
of  judicial  supremacy  was  merely  the  same  general  notion 
greatly  enlarged  and  somewhat  modified. 

And  what  has  been  said  of  fundamental  doctrines  is 
also  true  of  the  actual  provisions  of  the  constitution  from 
preamble  to  conclusion.  Few  of  them  represent  real 
innovations.  Many  go  back  to  the  great  landmarks  of 
civil  liberty  like  Magna  Carta  and  the  Grand  Remon- 


"THE  SUPREME  LAW  OF  THE  LAND"  55 

strance.  Nearly  all  have  their  roots  deep  down  in  the  soil 
of  English  history.  What  did  not  come  from  England 
came  chiefly  from  the  rich  granary  of  colonial  experience. 
Let  it  not  be  forgotten  that  Englishmen  had  been  adapting 
their  ancient  political  institutions  to  the  environment  of 
the  New  World  for  over  a  hundred  and  fifty  years  —  a 
longer  period  than  that  which  has  to-day  elapsed  since  the 
American  constitution  went  into  force.  They  had  tried 
many  things,  had  succeeded  in  some  and  failed  in  others. 
They  had  a  large  fund  of  homeland  data  to  draw  upon. 
To  foreign  lands,  accordingly,  the  framers  of  the  constitu- 
tion went  for  very  little.1  The  experiences  of  ancient  con- 
federacies, mediaeval  republics,  and  eighteenth  century 
absolutisms  were  instructive  mainly  in  showing  them  what 
to  avoid.  They  took  comfort  from  one  other  dictum  of 
Montesquieu,  that  the  best  government  is  "  that  which 
best  agrees  with  the  humor  and  disposition  of  the  people 
in  whose  favor  it  is  established."  2  Their  minds  were  there- 
fore set  upon  the  task  of  framing  a  constitution  which  would 
fit  the  "humor  and  disposition "  of  the  three  million  souls 
who  lived* along  the  Atlantic  seaboard.  Scholars  have 
wasted  much  energy  in  trying  to  find  out-of-the-way  origins 
for  some  of  the  things  which  went  into  the  constitution. 
For  the  electoral  college  which  was  established  to  choose 
the  chief  executive  of  the  United  States  there  is  no  need 
to  seek  precedents  in  the  college  of  cardinals  or  the  princely 
electors  of  the  Holy  Roman  Empire.  Even  this  strange 
institution  was  not  improbably  suggested  by  a  somewhat 
analogous  arrangement  which  already  existed  in  Maryland. 
The  constitution,  in  a  word,  contains  very  little  that  is 

1  "With  the  exception  of  the  method  of  electing  the  president  there  is 
not  a  clause  of  the  constitution  which  cannot  be  traced  back  to  English 
statutes  of  liberty,  colonial  charters,  state  constitutions,  the  articles  of 
confederation,  votes  of  congress,  or  the  unwritten  practice  of  some  of 
these  forms  of  government."  —  A.  B.  Hart,  National  Ideals  Historically 
Traced  (N.  Y.,  1907),  p.  139.  For  a  further  discussion  of  this  point  the 
following  books  may  be  indicated :  J.  H.  Robinson,  The  Original  and 
Derived  Features  of  the  Constitution  (Philadelphia,  1890) ;  C.  E.  Stevens, 
Sources  of  the  Constitution  of  the  United  States  (2d  ed.,  N.  Y.,  1894),  and 
Sydney  G.  Fisher,  The  Evolution  of  the  Constitution  of  the  United  States 
(N.  Y.,  1897). 

?  The  Spirit  of  Laws,  Book  I,  ch.  3. 


56        fHE  GOVERNMENT  OF  THE  UNITED  STATES 

not  indigenous.  It  is  Anglo-American  from  start  to  finish .* 
Its  genesis  is  to  be  found  at  Runnymede  and  Westminster, 
not  at  Philadelphia ;  it  is  the  handiwork  not  alone  of  Madi- 
son and  Wilson  and  Morris  but  of  Simon  de  Montfort, 
Edward  Coke,  John  Hampden,  and  Oliver  Cromwell.  What 
its  framers  did  not  get  from  England  they  took  from  the 
stock  of  past  and  present  institutions  in  America.  Dis- 
creet selection  rather  than  random  borrowing  marked  their 
work. 

The  constitution,  indeed,  contains  very  few  marks  of 
creative  genius ;  there  is  practically  no  provision  of  any 
importance  for  which  some  well-known  Anglo-Saxon  pre- 
cedent cannot  readily  be  found.  The  most  solid  and  excel- 
lent work  done  by  the  convention  was  its  enumeration  of 
the  eighteen  powers  of  Congress  1  and  its  definition  of  the 
judicial  power  of  the  United  States.2  In  both  these  cases 
the  experience  of  the  country  during  the  critical  years 
between  1781  and  1787  served  the  framers  as  virtually  their 
sole  guide. 

1  Article  i,.  Section  8.  2  Article  iii. 


CHAPTER  V 

HOW  THE   CONSTITUTION   HAS   DEVELOPED 

PROFESSOR  DICEY,  in  his  interesting  discussion  of  parlia-  Flexible 
mentary    sovereignty,    divides    all    constitutions    into    two  JJonstitu- 
general  classes,  flexible  and  rigid.     The  English  constitution,  tions. 
he  says,  is  flexible  because  its  provisions  may  be  changed 
in  the  same,  way  as  any  ordinary  law,  by  the  regular  law- 
making  authority  of  the  realm,  which  is  parliament.     The 
constitution  of  the  United  States,  on  the  other  hand,  he 
c.alls  rigid,  because  it  cannot  be  so  altered  by  the  regular 
law-making    authorities,    that    is,    by    the    President    and 
Congress.     Flexibility,  he  suggests,  makes  for  constitutional 
progress  and  easy  change ;    rigidity  for  conservatism.     In 
illustration  of  this  he  asserts  that  the  constitution  of  the 
United  States  did  not  undergo  a  tithe  of  the  changes  which 
marked  the  constitutional  development  of  England  during 
the  nineteenth  century.1 

This  difference  between  flexible  and  rigid  constitutions,  The 
however,  is  easy  to  exaggerate,  and  Professor  Dicey,  in  con-  Distinction 
trasting  English  with  American  constitutional  development,  over- 
has  laid  undue  emphasis  upon  it.     If  the   American  con-  emPhasized. 
stitution  could  only  be  expanded  or  developed  by  actually 
amending  it  in  the  way  prescribed,  there  would  be  goo(J 
reason  for  calling  it  rigid,  because  the  method  of  amend- 
ment is  tedious  and  difficult.     But  there  are  other  ways, 
quite  as    effective    and   much  simpler.      The    constitution 
of  the  United  States  has  been  enabled  to  keep  pace  with 
the  economic  and  social  needs  of  the  country  by  various 
other   agencies    of    development,    and    these   processes    of 
change  move  so  insidiously  that  they  do  not  seem  to  be  fully 
appreciated  by  foreign  students  of  American  government. 

1  Law  of  the  Constitution,  p.  120. 
57 


58        THE  GOVERNMENT  OF  THE  UNITED  STATES 


English 
and 

American 
definitions 
of  "consti- 
tutional 
develop- 
ment." 


The 
English 
constitu- 
tion is  not 
really  more 
flexible  than 
the  Ameri- 


Suffrage 
widening 
as  an 
example. 


The  haziness  on  this  point  is  in  part  due  to  the  fact  that, 
in  contrasting  English  with  American  constitutional  evolu- 
tion, due  care  has  not  always  been  given  to  terminology. 
When  we  wish  to  compare  the  constitutions  of  different 
countries,  we  should  first  reduce  them  to  a  common  denomi- 
nator. It  is  misleading  to  contrast  the  constitution  of  Eng- 
land, meaning  thereby  the  whole  body  of  fundamental 
laws,  court  decisions,  and  usages  which  determine  the  way 
in  which  Englishmen  are  governed,  with  the  constitution 
of  the  United  States,  meaning  by  that  term  only  the  written 
document  and  taking  no  cognizance  of  the  whole  body  of 
interpreting  laws,  decisions,  usages,  and  devices  which 
supplement  and  determine  the  real  application  of  those 
written  provisions.  Americans  are  governed  by  laws, 
judicial  decisions,  and  usages  quite  as  much  as  by  the  strict 
wording  of  their  national  constitution. 

If  we  look  at  matters  in  this  light,  meaning  by  the  Ameri- 
can constitution  that  whole  body  of  organic  jurisprudence 
which  fundamentally  determines  the  forms  and  facts  of 
actual  government,  it  is  not  true  that  the  constitution  of 
the  United  States  has  shown  itself  to  be  far  less  flexible 
than  the  constitution  of  England.  Let  the  following  ex- 
ample illustrate  this  point.  Among  the  great  constitutional 
changes  in  England  during  the  past  hundred  years  not  the 
least  important  are  those  embodied  in  the  Reform  Acts 
of  1832  and  1867  which  greatly  widened  the^  suffrage. 
These  reforms  stirred  public  discussion  to  its  depths.  The 
whole  world  realized  at  both  these  dates  that  England  was 
undergoing  a  great  constitutional  transition.  But  sub- 
stantially the  same  widening  of  the  suffrage,  and  indeed  an 
even  greater  widening,  took  place  in  the  United  States  during 
the  first  half  of  the  nineteenth  century  without  any  actual 
amendment  of  the  constitution,  but  merely  through  the 
enactment  of  new  suffrage  laws  by  the  various  states.  When 
the  national  constitution  went  into  force,  manhood  suffrage 
existed  almost  nowhere.  To-day  it  is  universal  throughout 
the  Union,  and  in  a  dozen  or  more  states  the  suffrage  has 
been  extended  to  include  women  as  well.  The  national  con- 
stitution did  not  lay  down  any  definite  rule  as  to  who  should 
vote  at  national  elections.  It  left  the  matter  to  be  deter- 


HOW  THE  CONSTITUTION  HAS  DEVELOPED          59 

mined,  under  certain  limitations,  by  the  several  states 
themselves.  Then,  one  by  one,  all  the  states  accepted  the 
principle  of  manhood  suffrage,  and  one  by  one  they  are 
now  giving  women  the  right  to  vote  at  national  elections. 
In  the  course  of  a  hundred  years  property  qualifications  for 
voting  have  been  everywhere  abolished  in  this  country. 
The  wording  of  the  constitution  remains  absolutely  un- 
changed on  this  point,  yet  the  actual  situation  with  refer- 
ence to  suffrage  (apart  from  negro  suffrage)  is  vastly  different 
from  what  it  was  at  the  end  of  the  eighteenth  century. 

Take  another  example,  the  power  of  the  Supreme  Court  Another 
to   declare  a  law  unconstitutional.     The   constitution,   as  ^p^V 
has  been  already  pointed  out,  conveys  no  such  right  in  Court's 
express   terms.     The   court   assumed  it,   whether  with   or  power- 
without  good  reason  is  not  the  question  here.     The  fact 
that  this  change  did  not  come  by  formal  constitutional 
amendment  is  no  good  reason  why  it  should  be  placed 
outside  the  field  of  constitutional  development.     Some  of 
the  most  notable  mutations  in  the  spirit  and  facts  of  Ameri- 
can government  have  taken  place  without  the   necessity 
of  altering  a  single  word  in  the  supreme  law  of  the  land. 
To  regard  a  written  constitution  as  rigid,  merely  because 
it  is  not  easy  to  amend  in  the  prescribed  way,  is  to  overlook 
other  great  agencies  of  elasticity  which  not  only  exist  but 
are  unceasingly  at  work. 

Whether  a  written  constitution  may  properly  be  called  The  true 
"rigid"  depends,  therefore,  not  only  upon  the  degree  of 
ease  or  difficulty  with  which  the  document  itself  may  be 
amended,  but  upon  the  breadth  of  its  various  provisions, 
upon  the  powers  and  policy  of  the  authorities  who  interpret 
these  provisions  and  upon  the  extent  to  which  development 
may  take  place  by  usage.  Under  certain  conditions  a 
written  constitution  may  be  more  flexible  and  more  easily 
brought  into  tune  with  new  and  popular  demands  than  one 
which  has  not  been  embodied  in  writing.  How  the 

The  constitution  of  the  United  States  is  definite  in  its  American 
enunciation  of  principles,  but  not  nearly  so  definite  in  its  tion  has" 
prescription  of  details.     It  leaves  many  things  to  be  worked  developed 
out  by  law  either  in  Congress  or  in  the  various  state  legisla-  j 
tures.     There  was  no  compelling  desire  to  have  all  things  law. 


60        THE  GOVERNMENT  OF  THE  UNITED  STATES 


Other 
examples. 


2.  develop- 
ment by 
judicial 
inter- 
pretation. 


exactly  uniform  throughout  the  country  except  in  matters 
which  absolutely  required  uniformity.  The  makers  of 
the  constitution  did  not  endeavoi*  to  settle  every  detail  of 
national  government.  Knowing  that  they  could  not  pro- 
vide for  all  contingencies,  they  did  not  try  to  do  so,  but 
trusted  to  future  Congresses,  or  to  the  various  state  legisla- 
tures, to  provide  whatever  detailed  arrangements  might 
prove  necessary. 

In  this  way  great  scope  was  left  for  the  development  of 
the  constitution  by  merely  changing  the  national  or  state 
laws.  And  in  the  last  century  and  a  quarter  there  has 
been  a  tremendous  development  through  this  channel. 
The  whole  structure  of  the  subordinate  federal  courts  is 
provided  for  by  federal  statutes,  since  the  constitution  merely 
handed  over  to  Congress  the  duty  of  making  such  provisions 
in  whatever  way  it  deemed  best.  The  succession  to  the 
presidency,  in  the  event  of  the  Vice-President  not  being 
available,  is  similarly  arranged  by  law.  There  is  scarcely 
a  word  in  the  constitution  relating  either  to  the  President's 
Cabinet  or  to  the  organization  of  the  various  executive  de- 
partments. All  that  is  provided  for  by  the  federal  laws. 
The  present  method  of  governing  territories  and  insular 
possessions  again  rests  wholly  upon  law  and  not  upon 
constitutional  provision.  So,  likewise,  the  methods  by 
which  members  of  Congress  are  nominated  and  elected,  and 
even  the  determination  of  who  shall  vote  at  congressional 
elections,  is  left  to  be  arranged  by  the  laws  of  the  several 
states.  Of  the  actual  present-day  workings  of  the  federal 
government  one  cannot,  indeed,  get  an  adequate  knowledge 
by  merely  studying  the  words  of  the  constitution  itself. 
By  far  the  greater  portion  of  what  the  student  of  actual 
government  desires  to  know  is  not  there  but  is  set  forth  in 
the  statute-books  of  the  nation  and  the  states. 

In  the  second  place,  the  constitution  has  been  developed 
by  judicial  and  administrative  decisions.  Montesquieu 
urged  that  the  judiciary  should  never  be  allowed  to  make 
or  alter  the  constitution  or  the  laws,  and  this  doctrine 
is  agreed  to  in  all  countries  to-day.  The  courts  should 
merely  interpret  the  constitution  and  the  laws.  Jus 
dicer  e,  non  dare,  the  saying  is.  Ostensibly  all  they  ever 


HOW  THE  CONSTITUTION  HAS  DEVELOPED          61 

do  is  to  interpret  and  apply ;  but  the  plain  fact  remains 
that  to  interpret  a  phrase  often  means  to  give  it  a  new 
application,  and  the  Supreme  Court  of  the  United  States 
has  read  into  the  American  constitution  many  things 
which  are  not  there  visible  to  the  naked  eye.  For 
one  hundred  and  thirty  years  question  after  question  has 
come  before  it  as  to  the  meaning  and  scope  of  various 
provisions,  phrases,  and  words  in  the  organic  law  of  the 
nation.  "Congress,"  the  constitution  declares,  "shall  have 
power  ...  to  regulate  commerce.  ..."  But  what  is 
included  within  the  term  "  commerce  "  ?  In  matters  of  trade 
and  industry  the  United  States  has  been  moving  forward 
with  phenomenal  rapidity,  each  year  bringing  new  problems 
concerning  the  relation  of  government  to  business.  It  has 
been  the  work  of  the  Supreme  Court,  through  its  power  of 
judicial  interpretation,  to  "twist  and  torture"  (as  Lord 
Bryce  puts  it)  the  term  "commerce"  so  that  it  will  cover 
them  all.  What,  again,  does  the  constitution  mean  by  the 
words  "to  regulate"?  By  its  regulating  power  may  it  tax, 
may  it  even  prohibit?  The  Supreme  Court  has  answered 
that  it  may  do  either  or  both.  It  has  held  at  various  times 
that  the  commerce  power  of  Congress  extends  not  only  to  the 
transportation  of  freight  and  passengers,  but  to  the  trans- 
mission of  telegrams,  telephone  messages,  light  and  power, 
the  sending  of  oil  through  pipe  lines,  to  pilotage,  maritime 
contracts,  and  many  other  things.1 

Here  we  have,  therefore,  a  new  element  of  flexibility,  its  scope. 
The  student  who  wants  to  know  what  the  actual  powers 
of  Congress  are  to-day  will  get  a  scant  idea  of  their  scope 
and  ramifications  by  merely  surveying  the  eighteen  formal 
powers  granted  in  the  words  of  the  constitution  itself. 
Hundreds  of  Supreme  Court  decisions  have  widened  these 
original  powers  beyond  recognition,  yet  never  in  a  single 
instance  has  the  court  asserted  its  power  to  make  any  change 
in  the  phraseology.  The  stretching  of  a  phrase  in  one 
decision  gives  a  foundation  for  some  further  elongation  in 
the  next ;  the  lines  of  development  are  pricked  out  by  one 
decision  after  another  until  the  last  has  carried  matters 
a  long  way  from  the  point  at  which  the  interpreting 
1  See  below,  pp.  249-250. 


62        THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  process 
of  inter- 
pretation. 


Its  effect  in 
strength- 
ening the 
national 
govern- 
ment. 


process  began.  The  framers  of  the  constitution  realized,  of 
course,  that  differences  of  opinion  would  arise  as  to  what 
various  provisions  expressed  or  implied,  and  they  took  it 
for  granted  that  the  Supreme  Court  would  resolve  those 
differences.  But  they  could  not  have  foreseen  the  stupen- 
dous amount  of  interpreting  that  would  have  to  be  done,  or 
the  subtle  way  in  which  this  process  would  in  the  end  spell 
actual  change. 

Provisions  of  the  constitution  are  subjected  to  judicial  in- 
terpretation only  when  actual  disputes  concerning  them  have 
arisen.  The  procedure  is  usually  as  follows :  Some  power 
is  claimed  and  exercised  by  a  national  or  state  legislature 
or  official ;  it  is  then  challenged  by  any  citizen  as  not  war- 
ranted by  the  constitution  and  the  issue  goes  to  the  courts. 
Not  always  directly  to  the  Supreme  Court  of  the  United 
States,  however,  although  if  the  issue  be  important,  it  event- 
ually comes  to  that  tribunal  ultimately  for  final  decision. 
In  determining  what  any  phrase  in  the  constitution  means, 
the  Supreme  Court  has  the  last  word.  This,  it  need  hardly 
be  reiterated,  is  a  tremendous  power,  and  one  which  has 
never  yet  been  assumed  by  the  paramount  judicial  authority 
in  any  other  land.  Its  exercise  has  greatly  modified  and 
expanded  the  provisions  of  the  constitution ;  it  is  probably 
true  that  a  greater  development  has  taken  place  through 
this  than  through  any  other  channel.  The  study  of  Ameri- 
can constitutional  law  to-day  is  chiefly  the  study  of  judicial 
decisions.1 

How  has  this  method  of  development  affected  the  rela- 
tive powers  of  the  nation  and  the  states  as  originally  ad- 
justed by  the  constitution?  On  the  whole  the  course  of 
judicial  interpretation  'has  greatly  widened  the  actual 
powers  of  the  national  government,  carrying  them  far 
beyond  what  the  framers  of  the  constitution  could  ever  have 
foreseen  or  intended.  The  Supreme  Court  at  an  early 

1  The  most  important  of  these  decisions  have  been  brought  together  in 
various  compilations,  of  which  the  best  is  James  Bradley  Thayer's  Cases 
in  Constitutional  Law  (2  vols.,  Cambridge,  1895).  A  smaller  collection, 
Lawrence  B.  Evans,  Leading  Cases  on  American  Constitutional  Law 
(Chicago,  1916),  will  be  found  more  convenient  for  student  use.  Emlin 
McClain,  Selection  of  Cases  on  Constitutional  Law  (2d  ed.,  Boston,  1900), 
is  also  well  worth  notice. 


HOW  THE  CONSTITUTION  HAS  DEVELOPED          63 

date  accepted  the  doctrine  of  "implied  powers  ";  in  other 
words  the  idea  that  whenever  the  constitution  gives  to 
Congress  a  general  power  in  express  terms,  it  conveys  by 
implication  all  the  collateral  authority  that  may  be  necessary 
or  proper  for  carrying  such  general  power  into  effective 
operation.  The  constitution,  for  instance,  gives  Congress 
no  express  power  to  charter  banks,  but  it  does  give  a  gen- 
eral power  to  borrow  money.  Hence  the  Supreme  Court 
long  ago  decided  that  if  Congress  regards  the  establishment 
of  banking  institutions  as  a  necessary  or  proper  aid  to  the 
exercise  of  its  borrowing  power,  it  may  establish  banks.1 
Within  the  general  power  to  tax,  to  borrow,  to  regulate 
commerce,  to  establish  post-offices  and  post-roads,  one 
action  after  another  on  the  part  of  Congress  has  been  up- 
held. The  distance  between  some  action  of  Congress  and  the 
literal  words  of  the  constitution  which  authorize  such  action 
often  seems  very  great,  but  a  chain  of  decisions  bridges  the  gap 
between.  Every  general  power  of  Congress  has  been  as  a  sun, 
developing  its  group  of  planets  or  subsidiary  powers,  while 
around  these  in  turn  have  grown  up  a  girdle  of  satellites. 

But  it  is  not  the  courts  alone  that  interpret  the  constitu-  The  con- 
tion,  although  in  the  main  this  function  is  assumed  by  them.  J^s™Juof 
Administrative  officers  from  the  President  down  are  often  tionai  pro- 
confronted   with   the   necessity   of   acting  promptly  when  ^™^y 
their  constitutional  powers  are  not  clear.     Their  actions  trative 
may  in  most  cases  be  challenged  and  subjected  to  judicial  rulin«8- 
review,  but  usually  they  are  accepted  without  any  such 
protest.     In  that  event  the  action  stands  and  forms  a  prec- 
edent for  the  future.     It  does  not  form  a  binding  precedent, 
of  course,  for  no  administrative  ruling,  however  long  ac- 
quiesced in,  is  certain  to  be  upheld  by  the  courts.     Never- 
theless, when  any  legislative  or  administrative  construc- 
tion of  a  constitutional  provision  has  been  allowed  to  pass 
for  a  long  time  unchallenged,  and  particularly  when  impor- 
tant public  or  private  rights  have  been  based  upon  it,  such 
construction  is  altogether  likely  to  be  accepted.     In  recent 
years  there  have  been  many  administrative  rulings  which 
virtually  operate  as  agencies  of  constitutional  development. 
The  opinions  of  the  Attorney-General,  given  for  the  guid-  J 

1  See  below,  p.  237. 


64        THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.  develop- 
ment by 
usage. 


Some  ex- 
amples : 
(a)  the 
actual 
method  of 
electing 
the  Presi- 
dent. 


ance  of  the  executive  departments,  afford  the  most  con- 
spicuous illustration. 

In  the  third  place  the  constitution  has  been  developed, 
expanded,  and  modified  by  usage  or  custom.  Alongside 
the  written  document  there  has  grown  up  a  body  of  practices 
based  neither  on  laws  nor  judicial  decisions,  but  merely 
the  result  of  long-continued  habit,  and  these  form  what 
is  sometimes  called  the  "unwritten  constitution "  of  the 
United  States.1  Custom  everywhere  plays  a  large  part 
in  actual  government.  England  is  the  classic  example  of  a 
land  ruled  largely  by  political  customs  or  usages,  but  even 
written  constitutions  have  not  precluded  the  development 
of  usages  elsewhere.  While  traditional  ways  of  doing 
things  have  no  force  when  they  come  into  actual  conflict 
with  the  letter  of  the  constitution,  usages  do  grow  luxuriantly 
within  the  broad  limits  permitted  thereby,  and  it  is  necessary 
to  reckon  with  them  in  any  survey  of  actual  government. 

What  are  some  of  the  customs  that  have  thus  developed 
in  the  practice  of  the  national  government?  One  concerns 
the  actual  method  of  electing  the  President.  It  was  as- 
sumed by  the  framers  of  the  constitution  that  the  electors 
in  the  several  states  would  meet,  each  at  his  own  state 
capital,  and  would  survey  the  whole  field  of  possibilities 
before  casting  their  votes.  By  custom  they  do  nothing  of 
the  sort.  They -have  become,  as  every  one  knows,  mere 
instrumentalities  with  no  deliberative  function.  They 
form  to-day  a  wholly  superfluous  cog  in  the  machinery  of 
election.  Yet  there  is  nothing  to  prevent  their  doing  just 
what  the  constitution  contemplated  that  they  would  do. 
The  custom  has  become  stronger  than  the  constitution 
itself.  To-day  the  President  of  the  United  States  is  as 
directly  chosen  by  the  voters  as  though  there  were  no  inter- 
vening electors  at  all.  In  other  words,  there  has  developed 
precisely  the  system  of  election  which  the  architects  of  the 
constitution  sought  to  avoid.  They  did  not  desire  any 
direct,  popular  election  of  the  nation's  chief  executive 
officers  and  spent  much  thought  in  devising  an  elaborate 
scheme  for  preventing  it. 

1  C.  G.  Tiedeman,  The  Unwritten  Constitution  of  the  United  States 
(N.  Y.,  1890). 


HOW  THE  CONSTITUTION  HAS  DEVELOPED          65 

Again,  the  constitution  empowers  the  President  to  make  (6)  the  con- 
appointments  subject  to  "the  advice  and  consent  of  the  ^m^?n 
Senate/7  But  by  usage  the  Senate's  advice  is  never  asked  dentiaiap- 
and  by  usage  also  its  consent  is  in  some  cases  never  refused.  P°mtments- 
The  Senate  never  declines  its  consent,  for  example,  to  those 
whom  the  President  may  select  for  Cabinet  offices.  The 
Cabinet  itself,  indeed,  represents  a  development  based  partly 
on  law  and  partly  upon  custom.  The  various  executive 
departments  are  organized  by  law,  but  usage  alone  has 
determined  What  heads  of  departments  shall  be  called  to 
Cabinet  meetings.  Mention  might  also  be  made  of  the 
principle  known  for  so  many  years  as  "senatorial  courtesy," 
by  virtue  of  which  presidential  appointments  were  under 
certain  circumstances  not  confirmed  by  the  Senate  unless 
they  were  first  approved  by  the  senators  from  the  state 
directly  concerned.  This  somewhat  pernicious  practice 
had  no  warrant  in  either  the  -constitution  or  the  laws,  but 
merely  grew  up  and  became  strong  enough,  at  one  period, 
to  be  rightly  regarded  as  an  important  feature  of  actual 
government.  In  the  matter  of  removals,  too,  the  rules 
have  been  established  by  usage  and  not  by  constitutional 
provision.  As  to  how  removals  should  be  made,  other 
than  by  impeachment  for  high  crimes  and  misdemeanors, 
the  constitution  is  silent,  and  the  question  early  arose  as  to 
whether  the  " advice  and  consent  of  the  Senate"  were  needed 
for  removals  in  the  same  manner  as  for  appointments. 
The  President,  however,  assumed  the  responsibility  of 
removing  officials  without  seeking  the  Senate's  concurrence, 
and  usage,  now  supported  by  judicial  decisions,  has  estab- 
lished his  right  in  the  matter. 

The  most  important  development  which  has  come  about  (c)  the 
in  the  whole  field  of  American  government  as  the  result  of  machinery 
both   extra-legal   and   extra-judicial   forces,    however,   has  of  political 
been  that   complicated  political  fabric  which  we  call  the  Parties- 
party  system.     The  framers  of  the  constitution  regarded 
the  rivalry  of   political  parties  —  the  violence  of   faction, 
they  termed  it — -as  a  thoroughly  vicious  feature,  inimical 
to   the   best  interests  of   free   government.      It  was  their 
hope    and    expectation  that    there  would  be  no  political 
parties  in  America,  hence  the  constitution  contains  no  men- 


66        THE  GOVERNMENT  OF  THE  UNITED  STATES 


(d)  money 
bills. 


(e)  other 
examples. 


tion  of  them.  Its  provisions,  indeed,  were  framed  on  the 
assumption  that  there  would  be  no  party  organizations. 
Yet  political  parties  sprang  into  being  almost  at  the  outset 
of  the  Union  and  they  soon  became  dominating  factors  in 
the  work  of  the  new  federal  government.  The  whole 
mechanism  of  the  political  party,  its  caucuses,  primaries, 
and  conventions,  its  platforms  and  pledges,  its  campaign 
and  committees,  its  manipulations  both  in  Congress  and 
outside  —  all  this  has  been  developed  for  the  most  part 
in  the  realm  of  unwritten  law.  Yet  who  will  say  that  party 
organizations  do  not  profoundly  affect  the  political  life 
of  the  American  people?  Custom  has  here  revolu- 
tionized in  its  spirit,  if  not  in  its  form,  the  whole  govern- 
mental structure  and  made  it,  whether  for  good  or  ill,  far 
different  from  what  its  architects  designed  it  to  be. 

Occasionally  it  happens  that  the  usage  proves  even 
stronger  than  the  literal  wording  of  a  constitutional  pro- 
vision. The  constitution,  for  instance,  stipulates  that  all 
bills  "for  raising  revenue"  shall  originate  in  the  House  of 
Representatives.  Nevertheless,  as  a  matter  of  actual 
practice,  some  bills  for  raising  revenue  do  originate  in  the 
Senate.  On  the  other  hand,  the  constitution  makes  no  stipu- 
lation as  to  where  bills  for  spending  money  shall  originate. 
By  usage,  however,  all  such  bills  originate  in  the  House. 
It  will  be  easily  seen,  therefore,  that  the  words  of  the  con- 
stitution furnish  no  guidance  whatever  on  matters  of  finan- 
cial procedure. 

Various  other  examples  of  institutions  and  practices 
which  owe  their  existence  to  usage  and  not  to  enactment 
might  easily  be  given.  The  Speaker  of  the  House  has 
developed  most  of  his  powers  by  custom.  The  caucus 
system  in  Congress  is  the  child  of  custom  alone ;  no  provision 
for  it  exists  in  the  constitution  or  in  the  laws.  So  is  the 
committee  system,  including  the  policy  of  appointing  a 
committee  of  conference  whenever  the  two  chambers  fail 
to  agree.  The  principle  that  no  President  should  hold 
office  for  more  than  two  terms  has  become  a  strong  tradition, 
although  this  was  far  from  being  the  intention  of  those  who 
framed  the  constitution.1 


The  Federalist,  No.  68. 


HOW  THE  CONSTITUTION  HAS  DEVELOPED          67 

Even  usages,  however,  may  change.  For  a  full  century 
no  President  ever  read  his  messages  to  Congress.  The 
custom  was  to  send  them  in  writing  by  messenger.  But 
President  Wilson  changed  this  custom,  setting  aside  the 
precedents  of  a  hundred  years,  and  it  is  quite  possible 
that  the  new  practice  may  be  continued  by  his  successors. 
Usage  has  profoundly  influenced  the  actual  workings  of 
national  government  in  America,  building  up  an  elaborate 
unwritten  constitution  and  thus  giving  to  the  written 
document  a  much  greater  resiliency. 

Finally,  the  constitution  has  been  developed  by  amending  4.  deveiop- 
it.  Its  framers  foresaw  that  the  need  for  amendments  J^116 
would  arise,  but  it  was  not  their  opinion  that  the  need  tion  by 
would  be  frequent  nor  was  it  their  desire  that  the  process 
of  amendment  should  be  easy.  Hence  they  provided  a 
rather  cumbrous  amending  machinery  which  ordinarily 
involves  action  not  only  by  Congress  but  by  three-fourths 
of  the  states.  There  are  two  alternative  methods  of  amend- 
ing the  constitution  of  the  United  States  and  they  cannot 
be  more  clearly  or  concisely  described  than  by  using  the 
exact  phraseology  of  the  document  itself.  "The  Congress, 
whenever  two-thirds  of  both  Houses  shall  deem  it  necessary, 
shall  propose  amendments  to  this  constitution,  or,  on  the 
application  of  the  legislatures  of  two-thirds  of  the  several 
states,  shall  call  a  convention  for  proposing  amendments, 
which,  in  either  case,  shall  be  valid  to  all  intents  and  pur- 
poses as  parts  of  this  constitution,  when  ratified  by  the 
legislatures  of  three-fourths  of  the  several  states,  or  by  con- 
ventions in  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  Congress/7 1 

Only  seventeen  amendments  have  been  made  to  the 
national  constitution  in  one  hundred  and  thirty  years. 
The  number  is  really  much  smaller,  for  the  first  ten  amend-  The  first 
ments,  all  made  at  the  same  time,  might  easily  have  been 
combined  into  a  single  one.  Taken  as  a  whole  the  seventeen 
fall  into  four  groups.  First  there  are  these  initial  ten  amend- 
ments which  are  commonly  called  the  Bill  of  Rights.  They 
should  have  been  put  in  the  original  document,  and  the  cam- 
paign for  the  ratification  of  the  constitution  would  have 

1  Article  v. 


68        THE  GOVERNMENT  OF  THE  UNITED  STATES 

been  less ,  arduous  if  that  had  been  done.  Much  of  the 
opposition  to  the  acceptance  of  the  constitution  was  based 
upon  its  failure  to  provide  any  of  the  safeguards  for 
individual  liberty  which  had  been  incorporated  into  the 
constitutions  of  the  various  states.  Immediately  after 
the  constitution  had  gone  into  force,  therefore,  a  series  of 
amendments  covering  these  matters  was  submitted  to  the 
states  and  ratified.  These  ten  amendments,  indeed,  ought 
not  to  be  regarded  as  amendments  at  all,  but  as  forming, 
to  all  intents  and  purposes,  an  integral  part  of  the  original 
constitution. 

Later  The  next  two  amendments,  the  eleventh  and  twelfth, 

rants1'  were  designed  to  remedy  what  appeared  to  be  ambiguities 
and  defects  in  the  original  provisions  —  perfecting  amend- 
ments, they  might  be  called.  The  former  was  a  direct 
result  of  a  Supreme  Court  decision  which  held  that  a  citizen 
could  sue  a  state  in  the  federal  courts.  This  interpretation 
of  the  judicial  power  conferred  by  the  constitution  aroused 
the  more  ardent  champions  of  state  rights,  who  bestirred 
themselves  to  have  the  judicial  sovereignty  of  the  states 
made  clear.1  The  other  amendment,  the  ,  twelfth,  was 
proposed  and  adopted  because  the  presidential  election  of 
1800  demonstrated  the  need  of  changing  that  section  of  the 
original  constitution  which  dealt  with  the  choice  of  a  Presi- 
dent and  Vice-President,  In  the  third  group  come  the  post- 
bellum  amendments,  thirteenth,  fourteenth,  and  fifteenth, 
embodying  the  principles  which  the  victorious  northern 
states  insisted  upon  after  the  Civil  War,  and  forming,  as 
it  were,  the  terms  of  peace.  Lastly,  there  are  the  sixteenth 
and  seventeenth  amendments,  dealing  respectively  with 
the  right  of  Congress  to  impose  taxes  on  incomes  and  with 
the  method  of  electing  senators.  Both  of  these  amend- 
ments have  been  adopted  in  our  own  day  and  both  of  them 
may  be  regarded  as  the  product  of  the  changed  political 
and  social  ideas  which  marked  the  incoming  of  the  twentieth 
century. 

After  all,  the  constitution  has  not  been  greatly  changed 
by  actual  amendment.     This  is  partly  because  the  process 
of  amendment,  with  forty-eight  states  now  concerned,  is 
1  See  below,  p.  347. 


HOW  THE  CONSTITUTION  HAS  DEVELOPED          69 

much  more  difficult  than  its  framers  expected  or  intended, 
but  it  is  also  because  there  are  easier  ways  of  gaining  the 
same  end.  By  means  of  their  senatorial  primaries,  for 
example,  many  of  the  states,  long  before  the  adoption  of  the 
seventeenth  amendment,  had  virtually  acquired  the  system 
of  choosing  senators  by  popular  vote.1  The  election  of  the 
President  by  what  is  virtually  a  direct  popular  vote  has  been 
secured  by  the  pliancy  of  the  state  legislatures,  no  formal  . 
amendment  being  necessary.  If  the  various  state  legisla- 
tures, however,  had  persisted  in  naming  the  presidential 
electors  themselves  and  had  not  turned  this  function  over 
to  the  people,  there  is  little  question  that  a  constitutional 
amendment  would  have  been  used  to  accomplish  the  change. 
The  amendment  of  the  constitution  is  the  last  resort  of 
those  who  desire  new  political  institutions.  It  is  a  method 
of  obtaining  what  cannot  be  had  by  statute,  by  usage,  or 
by  judicial  interpretation.  The  relative  infrequency  with 
which  amendments  have  actually  been  made  is  a  tribute 
to  the  foresight  of  those  who  couched  the  provisions  of  the 
constitution  in  broad  language  and  gave  it  thereby  an 
inherent  quality  of  suppleness.2 

Great  changes  may  take  place  in  the  spirit  of  a  govern-  Results  of 
ment  without  much  alteration  in  the  phraseology  of  its  J^j^' 
organic  law.     That  is  what  has  happened  in  the  United  veiopment: 
States.     The  federal  government  has  become  far  stronger  (a)  in- 
than  a  literal  reading  of  the  constitution  would  indicate,  strength  of 
It  has  steadily  gained  power,  chiefly  through  channels  of  national 
judicial  interpretation,  and  the  end  is  not  yet.     And  this  is  ^Tnt*1" 
despite  the  provision  that  all  powers  not  given  to  the  federal 
government  shall  revert  to  the  states. 

As  for  the  distribution  of  powers  between  the  three  organs  (&)  division 
of  government, — executive,   legislative,  and  judicial, — the  nfo^ers 
balance  as  originally  adjusted  in  1787  has  remained  with-  turbed. 
out  rude  disturbance.     The  executive,  in  relation  to  Con- 
gress, may  appear  to  have  grown  stronger  during  the  last 
half-century,  and  its   authority   in   war-time   is   assuredly 

1  Below,  p.  151. 

2  While  only  seventeen  amendments  have  been  adopted,  a  great  many 
more  have  been  proposed.     See  H.  V.  Ames,  "Proposed  Amendments  to 
the  Constitution  of  the  United  States,"  in  American  Historical  Associa- 
tion's Annual  Report  (1896). 


70        THE  GOVERNMENT  OF  THE  UNITED  STATES 


(c)  govern- 
ment has 
become 
more 
democratic. 


impressive,  but  Congress  is  still  all  that  it  was  designed  to 
be.  The  judiciary  is  the  organ  that  has  developed  the 
largest  measure  of  unexpected  strength.  It  is  well,  however, 
that  this  has  been  the  case ;  for,  to  be  successful,  a  federalism 
must  have  a  tribunal  strong  enough  to  act  as  an  impartial 
arbiter  between  contending  states,  to  protect  the  constitu- 
tional rights  of  minorities,  and  to  safeguard  the  liberty  of 
the  individual. 

It  is  not  in  the  general  organization  but  in  the  practical 
workings  of  American  government,  in  the  things  which  the 
laws  and  usages  determine,  that  most  of  the  development 
has  taken  place.  The  people  of  the  United  States  live  under 
a  far  more  democratic  government  to-day  than  in  the  clos- 
ing years  of  the  eighteenth  century.  This  is  not  because 
they  have  had  a  revolution,  bloodless  or  otherwise.  It 
is  merely  because  a  steady  popularization  in  the  spirit, 
usages,  and  methods  of  government  has  been  entirely  possi- 
ble within  the  original  framework.  If  the  national  consti- 
tution, as  some  now  profess  to  believe,  is  a  mere  travesty 
upon  the  principles  of  popular  government,  enshrining 
the  ideas  of  eighteenth-century  reactionaries  who  had  no 
confidence  in  democracy,  it  has  at  any  rate  afforded  scope 
for  the  development  of  democratic  institutions  on  a  scale 
such  as  the  constitutions  and  laws  of  no  other  country  have 
ever  permitted.  The  constitution  of  the  United  States, 
whatever  one  may  think  of  its  underlying  philosophy,  has 
served  the  cause  of  human  freedom  and  world  democracy 
as  no  other  document  has  ever  done. 

The  form  of  a  government,  after  all,  reaches  only  a 
little  way.  "  Constitute  government  how  you  please," 
Edmund  Burke  once  wrote,  "the  greater  part  of  it  must 
depend  upon  the  exercise  of  powers  which  are  left  at  large 
to  the  prudence  and  uprightness  of  ministers  of  state.  .  .  . 
Without  them  your  commonwealth  is  no  better  than  a 
scheme  on  paper,  and  not  a  living,  active,  effective  organiza- 
tion." 


CHAPTER  VI 

THE   CITIZEN  AND   HIS  RIGHTS 

i  THE  framers  of  the  constitution,  notwithstanding  their  The 
aversion  to  the  extremes  of  democracy,  had  implicit  faith 
in  the  principle  of  government  "by  the  consent  of  the 
governed."  They  began  with  the  humanistic  postulate 
that  man  is  a  superior  creature,  wholly  competent  to 
determine  his  own  political  destinies.  Accordingly  they 
accepted  the  people  as  the  source  of  all  political  power 
and  agreed  without  reservation  upon  the  principle  of 
ultimate  popular  sovereignty.  What  they  limited  was 
not  the  sovereignty  of  the  people,  but  the  way  in  which 
this  sovereignty  might  be  exercised.  Sovereignty  in  the 
United  States  rests,  therefore,  in  the  hands  of  the  citi- 
zens, acting  through  their  representatives  in  the  manner 
prescribed  by  the  constitution.  There  is  nothing  in  the 
form  or  mechanism  of  American  government  which  the 
citizens  of  the  United  States  cannot  change,  provided  they 
go  about  it  in  the  proper  way.  It  is  important,  therefore, 
that  we  should  have  some  definition  of  the  citizen,  his 
status,  his  rights,  and  his  duties. 

The  constitution  of  the  United  States  at  the  time  of  its  Who  are 
adoption  made  use  of  the  term  "citizen,"  but  did  not  define  cltlzens? 
the  term.  It  was  taken  for  granted,  no  doubt,  that  the 
rule  of  English  law,  as  laid  down  in  Calvin's  Case,  would 
be  followed,  namely,  that  allegiance  would  be  the  test 
of  citizenship,  that  all  persons  owing  allegiance  to  the 
United  States  or  to  a  state  of  the  Union  would  be  ac- 
counted citizens.  The  wording  of  the  constitution  seems 
to  recognize  this  double  citizenship,  state  and  national,  for 
it  speaks  of  "citizens  of  different  states"  and  also  of  "citi- 
zens of  the  United  States,"  But  no  hint  is  given  as  to 

71 


72         THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  old 

controversy 
over  dual 
citizenship. 


The  Dred 

Scott 

decision. 


Reversed  by 
the  Four- 
teenth 
Amend- 
ment. 


what  difference,  if  any,  was  assumed  to  exist  between  the 
two. 

Until  the  adoption  of  the  Fourteenth  Amendment  there 
was  a  great  deal  of  controversy  as  to  the  interrelation  of 
these  two  lines  of  allegiance.  Those  who  upheld  the  doc- 
trine of  states'  rights  inclined  to  the  view  that  citizenship 
of  the  United  States  was  merely  the  consequence  of  citizen- 
ship in  some  state  of  the  Union,  and  that  not  every  citizen 
of  a  state  became  ipso  facto  a  citizen  of  the  United  States. 
In  the  Dred  Scott  case  (1856),  the  Supreme  Court  took  the 
same  attitude.  "It  does  not  by  any  means  follow,"  de- 
clared the  court  in  this  decision,  that  "because  he  [a  negro] 
has  all  the  rights  and  privileges  of  a  citizen  of  a  state,  he 
must  be  a  citizen  of  the  United  States.  He  may  have  all 
the  rights  and  privileges  of  the  citizen  of  a  state  and  yet 
not  be  entitled  to  the  rights  and  privileges  of  a  citizen  in 
any  other  state.  For,  previous  to  "the  adoption  of  the  con- 
stitution of  the  United  States,  every  state  had  the  undoubted 
right  to  confer  on  whomsoever  it  pleased  the  character  of 
citizen,  and  to  endow  him  with  all  its  rights.  But  this 
character,  of  course,  was  confined  to  the  boundaries  of  the 
state,  and  gave  him  no  rights  or  privileges  in  other  states 
beyond  those  secured  to  him  by  the  laws  of  nations  and  the 
comity  of  states.  Nor  have  the  several  states  surrendered 
the  power  of  conferring  these  rights  and  privileges  by  adopt- 
ing the  constitution  of  the  United  States.  Each  state  may 
still  confer  them  upon  an  alien,  or  any  one  it  thinks  proper, 
or  upon  any  class  or  description  of  persons ;  yet  he  would 
not  be  a  citizen  in  the  sense  in  which  that  word  is  used  in 
the  constitution  of  the  United  States,  nor  entitled  to  sue 
as  such  in  one  of  its  courts,  nor  to  the  privileges  and  immuni- 
ties of  a  citizen  in  the  other  states."  1 

But  the  Fourteenth  Amendment,  adopted  in  1868,  re- 
versed this  doctrine,  asserting  that  "all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of 
the  states  wherein  they  reside."  This  amendment  declared 
citizenship  to  be  primarily  of  the  United  States  and  only 
consequentially  of  the  several  states.  Citizenship  of  the 
1  Dred  Scott  v.  Sandford,  19  Howard,  393. 


THE  CITIZEN  AND  HIS  RIGHTS  73 

United  States  was  made  fundamental.  Since  1868  any 
citizen  of  the  United  States  by  birth  or  naturalization  be- 
comes a  citizen  of  a  state  by  merely  taking  up  his  residence 
there.  No  state  can  either  bestow  American  citizenship 
or  withhold  it. 

So  far  as  the  rules  of  international  law  are  concerned,   The  dual- 
only  one  citizenship  is  recognized,  namely,  citizenship   of  ^J^ 
the  United  States.     In  relations  with  foreign  powers  all  exists, 
citizens  of  the  United  States,  wherever  resident,  are  alike ;  jj^j*  H 
they  are  equally  entitled  to  the  protection  of  the  national  general  im- 
government ;    they  carry  the  same  sort  of  passport ;    they  P°rtance- 
have   the   same   privileges    and   immunities    abroad.     But 
constitutional  law,  the  supreme  law  of  the  United  States, 
still  recognizes  the  dual  nature  of  American   citizenship, 
the  Fourteenth  Amendment  being  explicit  on  that  point 
when  it  uses  the  words  "citizens  of  the  United  States  and 
of  the  states  wherein  they  reside,"  although  no  one  can  now 
possess  one  form  of  citizenship  without  the  other.     Apart 
from  the  question  of  determining  the  courts  in  which  suits 
shall  be  brought,  however,  the  duality  is  not  of  any  practical 
importance  because  citizens  of  the  United  States  have  the 
same  privileges  and  immunities  in  all  the  states.1 

Who  are  citizens  ?  The  Fourteenth  Amendment  authori-  Citizenship 
tatively  defined  the  term  for  the  first  time  in  American  by  birth' 
constitutional  jurisprudence  as  "all  persons  born  or  natural- 
ized in  the  United  States  and  subject  to  the  jurisdiction 
thereof."  Citizenship  may  thus  be  acquired  either  by  birth 
or  naturalization.  But  as  a  matter  of  fact  not  all  persons 
who  are  actually  born  in  American  territory  are  citizens 
of  the  United  States.  The  words  "subject  to  the  juris- 
diction thereof"  introduce  a  qualification.  Children  born 
to  foreign  ambassadors  at  Washington  are  not  citizens  of 
the  United  States,  for  example,  because  even  though  born 
on  American  soil  they  are  not  subject  to  the  jurisdiction  of 
the  United  States.  On  the  other  hand,  the  children  of  Ameri- 
can ambassadors,  when  born  abroad,  or  children  born  of 
American  parents  on  American  vessels  at  sea  are  deemed  to 
have  been  born  in  the  United  States  and  to  be  "natural- 

1  Arnold  J.  Lien,  Privileges  and  Immunities  of  Citizens  of  the  United 
States  (N.  Y.,  1913). 


74        THE  GOVERNMENT  OF  THE  UNITED  STATES 

born  citizens/ '  eligible  as  such  for  election  to  the  presi- 
dency. But  apart  from  various  exceptions  of  this  sort, 
which  are  not  of  great  practical  importance,  all  persons 
born  in  the  United  States,  of  whatever  parentage,  are  citi- 
zens. The  old  common  law  doctrine  of  the  jus  soli,  embody- 
ing the  principle  that  allegiance  and  citizenship  are  in  the 
first  instance  governed  not  by  parentage  but  by  place  of 
birth,  is  the  pivot  of  all  American  rules  regarding  citizen- 
ship. In  addition  to  this,  however,  the  federal  laws  provide 
that  "all  children  born  out  of  the  limits  and  jurisdiction  of 
the  United  States,  whose  fathers  were  or  may  be  at  the 
time  of  their  birth  citizens  thereof,  are  declared  to  be  citizens 
of  the  United  States ;  but  the  rights  of  citizens  shall  not 
descend  to  children  whose  fathers  never  resided  in  the 
United  States."  1  In  other  words  the  principle  of  the  jus 
sanguinis  or  doctrine  of  citizenship  by  reason  of  parentage 
is  also  recognized.2 

Citizen-  Citizenship  may  also  be  acquired  by  naturalization.     The 

natundiza-     constitution  confers  on  Congress  the  right   "to  establish 
tion.  an  uniform  rule  of  naturalization,"  thereby  giving  it  com- 

plete power  over  the  admission  of  aliens  to  citizenship. 
Congress  accordingly  determines  the  conditions  and  pro- 
cedure in  naturalization. 

i.  Natural-  Naturalization  may  be  either  collective  or  individual, 
statute  or  ^-n  ^ne  ^ ormer  case  whole  bodies  of  persons  may  be  admitted 
by  treaty,  to  citizenship  at  one  stroke,  as  when  new  territory  is  annexed 
to  the  United  States  and  the  inhabitants  of  such  territory 
taken  within  the  fold  of  American  citizenship  by  treaty 
or  by  act  of  Congress.  This  was  done  in  the  case  of  Texas. 
When  Texas  joined  the  United  States  in  1845  after  a  success- 
ful revolt  from  Mexico,  all  citizens  of  Texas  were  made 
citizens  of  the  United  States  by  resolution  of  Congress. 
So  the  act  of  Congress  which  provided  a  civil  government 
for  Hawaii  (April  20,  1900)  conferred  American  citizenship 
on  all  those  who  had  been  citizens  of  the  Hawaiian  Republic. 

1  Revised  Statutes,  Section  1993. 

2  Two  monographs  which  deal  fully  with  this  general  subject  are  F.  Van 
Dyne,  Citizenship  of  the  United  States  (Rochester,  1904),  and  J.  S.  Wise, 
A  Treatise  on  American  Citizenship  (N.  Y.,  1906).     An  informing  "Report 
on  Citizenship  of  the  United  States"  was  issued  as  an  official  publication 
in  1907  (59th  Congress,  2nd  Session,  House  Document,  No.  326). 


THE  CITIZEN  AND  HIS  RIGHTS  75 

On  several  occasions,  when  the  United  States  has  acquired 
new  territories  by  treaty,  the  inhabitants  of  these  territories 
have  been  made  American  citizens  en  bloc  by  the  terms  of 
the  treaty.1 

But  the  mere  acquisition  of  new  territory  by  the  United  Mere  con- 
States  does  not  admit  to  American  citizenship  the  inhabit-  noTeVtaiT 
ants  of  such  territory.     There  must  be  a  specific  provision  collective 
to  that  effect  either  in  a  treaty  or  in  an  act  or  joint  resolu-  °^rallza- 
tion  of  Congress.     The  treaty  with  Spain  in  1898  by  which 
the  United  States  acquired  Porto  Rico  and  the  Philippines 
did  not  contain  any  such  provision,  nor  have  the  inhabit- 
ants of  either  been  admitted  to  the  full  status  of  Ameri- 
can citizenship  by  any  subsequent  act  of  Congress.     Con- 
gress has  granted  to  the  Porto  Ricans  all  of  the  privileges 
and  immunities  of  citizens  of  the  United  States  and  to  the 
Filipinos   some   of  these  privileges   and  immunities ;    but 
neither  the  Porto  Ricans  nor  the  Filipinos  are  American 
citizens  in  the  strictly  legal  sense  of  that  term.     In  the 
phraseology  of  international  law  they  are  called  "nationals" 
of  the  United  States,  which  means  that  they  are  entitled 
to  the  protection  of  the  American  government,  to  have 
American  passports  when  they  go  abroad,  and  in  general 
to  enjoy  all  the  rights  of  an  American  citizen  when  outside 
American  territory. 

Collective  naturalization  by  treaty  or  by  action  of  Con- 
gress is  not  common.     When  one  speaks  of  naturalization, 
it  is  ordinarily  of  the  other  form,  namely,  the  naturaliza- 
tion of  individuals.     This  is  a  judicial  process  the  nature  of  2.  Naturai- 
which  is  prescribed,  even  to  its  smallest  details,  by  the  ^dTda!^ 
federal  laws.     There  are  two  chief  steps  in  the  procedure,  process, 
both  of  which  must  be  taken  before  a  duly  authorized  fed- 
eral or  state  court.     The  first  step  is  a  formal  "declara- 
tion of  intention  "  to  become  a  citizen.     This  formal  declara- 
tion may  be  made  by  any  alien  who  is  "a  white  person,  or  of 
African  nativity  or  of  African  descent,"  2  before  any  federal 
court  or  any  state  court  of  record  having  jurisdiction  over 
the  place  in  which  he  lives.     Such  declaration  may  not  be 

1  For  example  the  Louisiana  treaty  of   1803 ;    the  Florida  treaty  of 
1819 ;   the  Alaska  treaty  of  1867,  and  others. 

2  It  will  be  noted  that  this  wording  excludes  most  Asiatics, 


76        THE  GOVERNMENT  OF  THE  UNITED  STATES 


(a)   the  dec- 
laration of 
intention 
("first 
papers"). 


(&)  the  let- 
ters of  citi- 
zenship 
("final 
papers"). 


filed,  however,  until  the  alien  has  reached  the  age  of  eighteen 
years.  The  declaration  must  contain  information  as  to 
the  applicant's  name,  age,  parentage,  occupation,  country 
of  origin,  and  time  and  place  of  arrival  in  the  United  States  ; 
and  it  must  further  announce  his  intention  to  become  a 
citizen,  and  thereby  to  divest  himself  of  all  allegiance  to 
any  foreign  sovereign.1  A  copy  of  this  document,  under 
the  seal  of  the  court,  is  given  to  the  alien,  and  must  be  pre- 
sented by  him  when  he  applies  for  final  naturalization. 

After  not  less  than  five  years'  continuous  .residence  in  the 
United  States  and  not  less  than  two  years  after  an  alien 
has  filed  his  declaration  of  intention,  he  may  file  a  petition 
for  letters  of  full  citizenship  in  any  one  of  the  various  courts 
designated  by  law  as  having  authority  over  naturalization 
matters,  provided  that  he  has  lived  within  the  jurisdiction 
of  this  court  at  least  one  year  immediately  preceding  the 
filing  of  his  petition.2  The  petition  must  be  signed  by  the 
applicant  himself,  and  must  give  full  answers  to  a  set  of 
prescribed  questions.  If  the  alien  has  arrived  in  the  United 
States  since  June  29,  1906,  his  petition  must  be  accompanied 
by  a  document  from  the  United  States  immigration  authori- 
ties certifying  the  time  and  place  of  his  arrival.  In  addition, 
he  must,  when  he  files  his  application,  bring  forward  the 
sworn  statements  of  two  witnesses  (both  of  whom  must  be 
citizens  of  the  United  States)  in  personal  testimony  to  his 
five  years'  continuous  residence  and  his  moral  character, 
and  in  substantiation  of  the  other  claims  made  in  his  peti- 
tion. After  this  paper  has  been  left  with  the  clerk  of  the 
court  it  must  lie  on  file  for  at  least  ninety  days,  during 
which  notice  of  its  filing  is  posted.  In  this  interval,  also, 
an  investigation  of  the  petitioner's  claims  is  undertaken 
by  one  of  the  federal  agents  employed  for  the  purpose. 
All  these  formalities  having  been  attended  to,  the  court 
sets  a  date  for  a  hearing  upon  the  petition.  This  hearing 
must  be  public,  and  cannot  take  place  within  thirty  days 
preceding  any  regular  federal  or  state  election.  Both 

1  Citizenship  may  be  acquired,  however,  without  formal  declaration  of 
intention  by  aliens  who  have  served  a  certain  term  in  the  United  States 
army  or  navy  and  have  been  honorably  discharged  therefrom. 

2  These  requirements  are  waived  in  the  cases  of  persons  who,  in  time  of 
war,  are  members  of  the  armed  forccs'of  the  United  States. 


THE  CITIZEN  AND  HIS  RIGHTS 


77 


witnesses  must  attend  the  hearing  with  the  applicant,  and 
must  answer  such  questions  as  may  be  put  to  them  by 
the  presiding  judge,  who  may  also  demand  from  the  appli- 
cant assurance  that  he  is  not  affiliated  with  any  organiza- 
tion teaching  disbelief  in  organized  government,  and  that 
he  is  attached  to  the  principles  embodied  in  the  constitution 
of  the  United  States.  If  the  court  is  satisfied  upon  these 
various  points,  the  clerk  will  issue  letters  of  citizenship,  or 
final  papers,  as  they  are  more  commonly  called,  and  the 
alien  is  thereafter  a  full-fledged  citizen. 

These   strict   rules   concerning   naturalization   procedure  Reason  for 
are  the  outcome  of  an  attempt  to  put  an  end  to  various  ^"JjfflJ, 
abuses  that  existed  under  the  provisions  of  previous  naturali-  present 
zation  laws.     Prior  to  1906,  when  the  process  of  naturaliza-  natuyallza- 

-  .  .    .  tion  laws. 

tion  was  simpler  and  easier,  fraudulent  admission  to  citizen- 
ship was  not  uncommon.  Sometimes  an  alien  got  himself 
enrolled  as  a  citizen  upon  the  voters'  list  by  means  of  forged 
papers  ;  and,  since  there  were  so  many  courts  with  authority 
to  grant  these  papers,  the  detection  of  forgeries  was  not 
easy.  More  often,  crowds  of  aliens  were  admitted  to  citi- 
zenship during  the  days  preceding  an  election,  when  no 
careful  investigation  of  their  statements  was  possible. 
Paid  witnesses  were  sometimes  provided  by  the  party 
managers  to  take  oath  as  to  matters  which  they  knew  noth- 
ing about.  In  fact,  the  naturalization  of  foreigners  became 
one  of  the  regular  undertakings  of  the  ward  organization : 
the  applicant's  petition  was  made  out  for  him,  his  witnesses 
were  supplied,  the  foreigner  being  nothing  more  than  a 
participant  in  formalities  which  he  did  not  even  understand. 
The  handling  of  fifty  or  sixty  naturalizations  per  hour  was 
not  a  rare  achievement  in  New  York  courts  before  the 
stricter  rules  went  into  force.  Under  such  pressure  during 
the  days  preceding  the  registration  of  voters,  all  careful 
scrutiny  of  petitions  was  out  of  the  question ;  and  the  voters' 
lists  of  the  larger  cities  were  regularly  padded  with  the 
names  of  persons  who  had  not  fulfilled  the  stated  qualifica- 
tions at  all.  Since  1906  these  abuses  have  been  almost 
wholly  eliminated. 

But  however  their  citizenship  may  have  been  acquired, 
whether  by  birth  or  naturalization,  all  citizens  of  the  United 


78         THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  status 
of  natural- 
ized citi- 
zens at 
home  and 
abroad. 


The  "privi- 
leges and 
immuni- 
ties" of 
citizens  in 
general. 


These  do 
not  include 
political 
privileges. 


States  are  on  a  plane  of  legal  equality.  They  have  the 
same  rights  under  the  constitution  save  in  one  respect, 
namely,  that  only  citizens  by  birth  are  eligible  to  the  office 
of  President  or  Vice-President.  One  other  difference,  the 
outgrowth  of  international  comity,  should  also  be  men- 
tioned because  it  is  in  some  cases  of  great  importance. 
Several  European  states,  Italy  and  Germany  for  example, 
do  not  recognize  the  right  of  persons  born  in  those  countries 
to  become  naturalized  citizens  of  the  United  States  and  then, 
on  returning  to  the  land  of  their  birth  or  parentage,  to  set 
up  this  American  citizenship  as  a  means  of  evading  com- 
pulsory military  service  or  other  such  obligations.  Hence 
it  has  been  generally  conceded  by  the  United  States  that 
if  a  naturalized  American  citizen  chooses  to  return  to  his 
native  country,  he  will  not  be  protected  there  against  the 
exaction  of  any  obligations  which  are  established  by  the 
laws  of  that  country  upon  its  own  citizens.  A  naturalized 
citizen  has  the  same  right  of  protection  as  a  native-born 
citizen  so  long  as  he  remains  in  the  United  States  or  if  he 
goes  to  any  country  other  than  his  own  native  land;  but 
if  he  returns  to  the  land  of  his  original  citizenship,  he  does 
so  at  his  own  risk. 

Citizens  of  the  United  States,  whether  natural-born  or 
naturalized,  are  not  only  entitled  to  protection  in  foreign 
countries  but  they  are  safeguarded  against  adverse  dis- 
crimination in  any  state  of  the  Union.  The  Fourteenth 
Amendment  provides  that  "no  state  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States."  What  are  the  privileges 
and  immunities  of  citizenship?  Political  privileges,  for 
example,  are  not  necessarily  an  accompaniment  of  citizen- 
ship. American  citizenship  does  not  necessarily  imply 
the  right  to  vote  or  to  hold  office.  Women  are  citizens  as 
well  as  men,  yet  in  the  majority  of  the  states  they  are  with- 
out political  privileges.  On  the  other  hand,  the  right  to 
vote,  even  at  presidential  and  congressional  elections,  has 
been  given  in  various  states  to  persons  who  are  not  citizens. 
The  relation  between  citizenship  and  the  right  to  vote 
is  at  best  an  incidental  and  not  a  necessary  relation.  The 
Supreme  Court  has  made  it  clear  on  more  than  one  occasion 


THE  CITIZEN  AND  HIS  RIGHTS  79 

"that  the  constitution  of  the  United  States  does  not  confer 
the  right  of  suffrage  upon  any  one,  and  that  the  United 
States  have  no  voters  of  their  own  creation."       The  attempt 
was  made,  by  the  adoption  of  the  Fifteenth  Amendment,  The 
to  enforce  the  granting  of  voting  rights  to  negroes  in  the  ^mend 
southern    states.     This    amendment    does    not    specifically  and  its 
mention  negroes;    it  merely  forbids  the  denial  of  voting 
rights  by  any  state  on  the  ground  of  "race,  color,  or  pre-  icaiprivi- 
vious  condition  of  servitude"  ;  but  the  purpose  of  this  pro- 
vision  is  unambiguous. 

This    purpose,    however,    has    not    been    fulfilled.     The  HOW  this 
southern  states  have  been  able,  in  a  roundabout  way,  to 
shut  out  negroes  from  voting.     This  is  usually  done  by  antee  is 
requiring  that  no  one  may  vote  unless  he  can  read  and  write. 
Inasmuch  as  the  percentage  of  illiterates  among  negroes  is 
very  large,  the  requirement  that  voters  shall  be  able  to  read 
or  write  is  one  which,  when  strictly  administered,  shuts 
out  a  large  proportion  of  them.     But  there  are  also  many 
illiterate  white  citizens  who  would  be  excluded  by  the  test ; 
and  for  their  benefit  Alabama,  Louisiana,  Mississippi,  North 
and  South  Carolina,  and  Virginia  have  provided  means  where- 
by the  requirement  can  be  easily  circumvented  by  the  white 
element  of  the  population.     Various  devices  are  employed 
to  this  end.     In  one  case  the  provision  is  that  the  voter  i.  the 
must  either  read  the  constitution  or  "give  a  reasonable 
interpretation  thereof/'  the  question  whether  the  interpre- 
tation is  reasonable  or  not  resting  with  the  white  officials 
in  charge  of  the  registration.2     In  another  state  the  so-termed 
"grandfather  clause"  relieves  from  the  necessity  of  passing  2.  the 
the  educational  test  all  those  who  enjoyed  voting  rights  £^a°d" 
before  1867  and  all  descendants  of  such  voters,  which  is  a  clause." 
way  of  giving  complete  exemption  to  all  native-born  white 
citizens.3     Still  another  of  the  southern  states  exempts  all  3.  the  tax 
owners  of  property  who  have  paid  the  taxes  assessed  for 
the  year  preceding  enrolment.     As  the  percentage  of  prop- 
erty-owning negroes  is  small  in  the  southern  cities,  and  the 
proportion  of  those  who  promptly  pay  their  taxes  even 

1  Minor  v.  Happersett,  21  Wallace,  162. 

2  Constitution  of  Mississippi,  1890.     Article  xii,  Section  244. 

3  Constitution  of  Louisiana,  1898.     Article  cxcvii,  Sections  3-5. 


80        THE  GOVERNMENT  OF  THE  UNITED  STATES 


4.    exclu- 
sion 

from  the 
primaries. 


The  letter 
and  the 
spirit  of 
the  law. 


The  Woman 

Suffrage 

Movement. 

Its  progress 

and  the 

reasons 

therefor. 


smaller,  it  follows  that  not  many  illiterates  get  their  names 
upon  the  rolls  by  the  use  of  this  exemption.1 

Finally,  there  is  a  way  of  permitting  the  negroes  to  vote  but 
depriving  them  of  all  real  share  in  the  selection  of  representa- 
tives. Practically  all  the  southern  states  are  overwhelmingly 
Democratic.  The  candidates  who  receive  the  nomination  of 
that  political  party  are  certain  to  win  at  the  polls,  hence  the 
real  fight  is  for  the  nomination.  The  plan  pursued  in  some  of 
these  states,  therefore,  is  to  exclude  negroes  from  voting  at 
the  primaries  where  the  real  contest  takes  place.  Each  state 
has  full  power  to  determine  who  shall  be  enrolled  as  mem- 
bers of  any  political  party  and  hence  entitled  to  a  share 
in  the  selection  of  the  party  candidates.  The  Fifteenth 
Amendment  does  not  forbid  the  exclusion  of  any  one  from 
membership  in  a  political  party  by  reason  of  race  or  color. 

All  of  these  provisions  keep  within  the  letter  of  the  Fif- 
teenth Amendment,  even  if  they  disregard  its  spirit.  They 
illustrate  how  easy  it  is,  after  all,  to  find  ways  of  evading 
a  constitutional  provision  when  Congress  does  not  provide 
adequate  machinery  for  enforcing  it,  and,  indeed,  when 
public  opinion  throughout  the  country  does  not  feel  suffi- 
ciently interested  to  demand  its  enforcement.  These 
various  devices  have  been  established  for  the  sole  purpose 
of  disfranchising  the  negroes.  That  they  have  done  this 
effectively  is  proved  by  the  estimate,  based  upon  careful 
study,  that  in  some  of  the  southern  states  not  more  than 
one  adult  male  negro  out  of  every  hundred  is  allowed  to 
vote  at  presidential  elections.2 

The  question  of  granting  complete  voting  rights  to  women 
has  been  much  discussed  for  many  years  in  the  United 
States.  The  first  grant  of  full  suffrage  to  women  was 
made  by  the  territory  of  Wyoming  in  1869.  This  privilege 
was  continued  when  the  territory  became  a  state  in  1890, 

1  Constitution  of  South  Carolina,  1895.     Article  ii,  Section  4.     For  a 
further  discussion  of  these  matters,  see  J.  B.  Phillips,  Educational  Qualifica- 
tions of  Voters  (University  of  Colorado  Studies,  III,  No.  2) ;    and,  for  a 
defence  of  the  policy  pursued  by  the  southern  states,  see  F.  G.  Gaffey's 
article  on  "Suffrage  Limitations  at  the  South,"  in-  Political  Science  Quar- 
terly, XX,  53-67  (March,  1905). 

2  J.  C.  Rose,  "Negro  Suffrage,"  in  American  Political  Science  Review, 
I,  20  (November,  1906). 


THE  CITIZEN  AND  HIS  RIGHTS  81 

and  since  that  date  about  a  dozen  other  states  have  given 
full  voting  rights  at  all  elections/  while  many  of  the  remain- 
ing states  have  granted  them  the  right  to  vote  at  some 
elections  but  not  at  others.  Considerations  both  of  senti- 
ment and  of  expediency  have  led  to  this  extension  of  suffrage. 
The  doctrine  of  natural  rights  has  been  revived  to  do  ser- 
vice. More  influential,  however,  have  been  the  distinctly 
practical  considerations ;  for  example,  the  fact  that  women 
are  in  many  cases  taxpayers  and  hence  should  have  a  direct 
share  in  their  government,  and  that  many  are  wage-earners 
and  hence  deserve  a  share  in  determining  the  relation  of  the 
laws  to  industry.  The  progress  of  the  movement  for  woman 
suffrage  is  also  in  some  measure  the  outcome  of  American 
social  usages  which  have  placed  the  two  sexes  on  a  plane 
of  equality  in  nearly  all  non-political  fields  of  activity. 

Various  arguments  are  advanced  both  for  and  against  Arguments 
the  policy  of  giving  full  voting  rights  to  women.  Women  are  m  favor- 
citizens  ;  many  of  them  own  property ;  and  all  are  so  affected 
by  the  workings  of  government  as  to  be  directly  interested 
in  its  efficiency.  In  some  fields  of  law  and  regulation,  such 
as  those  relating  to  the  care  of  the  dependent  and  delin- 
quent classes,  to  hours  and  conditions  of  female  and  child 
labor,  women  have  a  particularly  vital  interest.  It  is 
claimed  that  the  extension  of  the  suffrage  to  women  would 
in  some  degree  offset  the  political  influence  of  the  foreign- 
born  element  in  large  communities  since  the  figures  show 
that  far  more  male  than  female  immigrants  come  to  this 
country.  It  is  said  that  women,  if  given  the  ballot,  would 
constitute  a  powerful  element  in  opposition  to  the  vicious 
influences  in  American  political  and  social  life,  the  saloon, 
the  gambling  den,  the  brothel,  and  so  on.  And  finally,  it 
is  urged  that  where  women  have  been  given  the  suffrage 
the  result  has  been  made  manifest  in  the  humanizing  of 
the  laws  and  in  the  improved  tone  of  political  life. 

In  opposition  to  the  policy  it  is  argued  that  women  would  Arguments 
not  use  the  ballot  wisely,  being  actuated  by  their  sympathies  aeainst- 

1  They  are  as  follows  :  Colorado  (1893) ;  Utah  (1896) ;  Idaho  (1896) ; 
Washington  (1910) ;  California  (1911) ;  Arizona  (1912) ;  Kansas  (1912) ; 
Oregon  (1912) ;  Montana  (1914) ;  Nevada  (1914) ;  New  York  (1917) ; 
Michigan,  South  Dakota,  and  Oklahoma,  1918. 

G 


82        THE  GOVERNMENT  OF  THE  UNITED  STATES 


What 

experience 

proves. 


Other 

things 

which  are 

not 

"rights" 

of  a 

citizen. 


and  emotions  rather  than  by  their  judgment ;  that  they 
would  not  develop  an  active  interest  in  politics  or  come  to 
the  polls  in  reasonably  large  numbers;  that  the  extension 
of  the  suffrage  to  women  would  tend  to  weaken  the  family  as 
a  social  and  economic  unit ;  that  it  would  greatly  increase 
the  expense  of  elections  without  making  government  more 
truly  representative;  and  that  it  would  merely  widen  the 
area  of  political  activity  at  the  expense  of  normal  domestic 
life. 

The  results  of  woman  suffrage  in  the  states  which  have 
had  a  sufficient  experience  with  the  institution  seem  to 
show  that  neither  the  merits  nor  defects  of  the  policy  have 
been  as  marked  as  its  advocates  or  opponents  respectively 
would  have  us  believe.  Women  have  used  the  suffrage 
much  as  men  have  used  it,  showing  no  more  interest  and  no 
less,  using  the  ballot  with  great  intelligence  at  some  times 
and  with  little  at  others,  even  as  men  have  done  for  many 
generations,  influenced  by  their  prejudices,  whipped  into 
line  by  party  bosses,  all  as  men  are,  and  apparently  to  the 
same  degree.  The  granting  of  voting  rights  to  women  in 
a  dozen  states  of  the  Union  has  not  demoralized  domestic 
life  in  any  of  them,  nor,  on  the  other  hand,  has  it  had 
noticeably  effective  results  in  the  way  of  securing  these 
states  a  priority  over  the  others  in  the  humanitarianism  of 
their  laws.  The  chief  merit  of  woman  suffrage  in  these 
communities  has  been  that  of  rendering  content  a  large 
group  of  citizens  without  in  any  perceptible  measure  im- 
pairing the  economic,  social,  or  political  order. 

The  privileges  and  immunities  of  a  citizen  of  the  United 
States,  again,  do  not  include  the  right  to  serve  on  a  jury  in 
any  state  court.  A  state  may  restrict  that  privilege  or 
duty  to  its  own  citizens,  or  in  other  words  to  citizens  of  the 
United  States  who  reside  in  the  state  concerned.  So  with 
many  other  privileges  which  do  not  appertain  to  a  citizen 
as  such.  The  right  to  practice  law  or  medicine  in  one  state, 
or  to  drive  a  motor  car  there,  gives  no  privilege  of  doing 
the  same  in  any  other  state.  These  are  on  the  same  plane 
as  the  right  to  vote,  save  that  the  discretion  of  the  state 
is  even  wider.  A  state  may  allow  its  own  citizens  and  no 
others  to  be  lawyers,  physicians,  druggists,  school  teachers, 


THE  CITIZEN  AND  HIS  RIGHTS  83 

chauffeurs,  or  what  not.  Where  a  state  grants  to  outsiders 
the  same  privileges  as  to  its  own  citizens  in  any  of  these 
things  it  does  so  as  a  matter  of  comity  or  interstate  courtesy, 
not  because  it  is  compelled  so  to  do  by  any  constitutional 
requirement. 

The  right  to  vote,  to  hold  office,  to  serve  on  a  jury,  or  to 
practice  a  profession  —  these  rights  do  not  appertain  to 
citizens  as  such.  They  are  privileges  granted  or  withheld 
by  the  several  states  as  expediency  may  dictate.  There 
are,  however,  other  privileges  which  do  appertain  to  Ameri- 
can citizenship,  the  "privileges  and  immunities  of  citizens/7 
as  the  constitution  terms  them.  These  words  are  compre- 
hensive, and  the  Supreme  Court  has  wisely  refrained  from 
any  attempt  to  make  a  complete  list  of  the  American  citi- 
zen's privileges  and  immunities.1  But  in  general  they 
include  the  right  to  pass  freely  from  state  to  state,  to  reside 
in  any  one  of  the  states,  and  to  have  all  such  privileges  as 
are  accorded  to  residents  there ;  to  own  property,  whether 
real  or  personal,  in  any  state;  to  sue  in  the  courts  of  the 
state  in  which  a  citizen  resides ;  to  appeal,  when  necessary, 
to  the  federal  courts,  and  to  have  when  abroad  the  protec- 
tion of  the  federal  government  for  his  life,  liberty,  and  prop- 
erty. Nor  may  a  citizen  of  the  United  States  be  deprived 
by  legislation  of  his  life,  liberty,  or  property  without  "due 
process  of  law,"  that  is  to  say,  except  by  the  proper  exercise 
of  a  state's  police  power ;  in  other  words,  its  power  to  pro- 
tect the  safety,  health,  and  morals  of  its  own  people.2  These 
are  the  real  "rights"  of  the  citizen,  his  constitutional  privi- 
leges, which  no  law  of  any  state  may  abridge. 

1  The  nearest  approach  to  any  full  enumeration,  perhaps,  is  that  made 
in  the  Slaughter  House  Cases  (16  Wallace,  36),  where  the  Supreme  Court 
included  among  the  privileges  and  immunities  of  citizens  the  right  "to 
demand  the  care  and  protection  of  the  federal  government  over  his  life, 
liberty  and  property  when  on  the  high  seas,  or  within  the  jurisdiction  of  a 
foreign  government ;    to  peaceably  assemble  and  petition  for  the  redress 
of  grievances,  the  privilege  of  habeas  corpus ;  to  use  the  navigable  waters 
of  the  United  States  however  they  may  penetrate  the  territory  of  the  sev- 
eral states;    all  rights  secured  to  citizens  by  treaties  with  foreign  states 
.  .  .  the  right  on  his  own  volition  to  become  a  citizen  of  any  state  of  the 
United  States  by  a  bona  fide  residence  therein,  with  the  same  rights  as  other 
citizens  of  that  state." 

2  For  an  explanation  of  "due  process  of  law"   and  its  history  see 
below,  pp.  291-294. 


84        THE  GOVERNMENT  OF  THE  UNITED  STATES 


Is  a  cor- 
poration 
a  citizen? 


The  in- 
alienable 
rights 
secured  by 
constitu- 
tional 
limitations. 


For  most  judicial  purposes  a  corporation  is  a  citizen. 
It  is  deemed  to  be  a  citizen  of  the  state  in  which  it  has  been 
organized.  A  corporation  chartered  in  New  Jersey,  for 
example,  is  by  legal  assumption  a  citizen  of  that  state 
and  as  such  entitled  to  the  equal  protection  of  the  laws 
in  all  other  states.1  In  determining  whether  a  suit  to 
which  a  corporation  is  a  party  shall  be  brought  in  the 
federal  courts  (in  accordance  with  the  constitutional  provi- 
sion which  gives  these  courts  jurisdiction  over  controversies 
"between  citizens  of  different  states'7)  the  corporation  is 
deemed  to  be  a  citizen  of  the  state  in  which  it  was  chartered. 
But  while  it  is  regarded  by  the  courts  as  having  in  many 
respects  the  same  rights  as  a  natural  person,  a  corporation 
is  not  a  citizen  in  the  same  sense  as  an  individual  and  is  not 
entitled  to  all  the  "privileges  and  immunities"  which  the 
constitution  guarantees  to  the  individual  citizen.  It  is 
quite  permissible,  accordingly,  to  make  reasonable  discrim- 
inations by  the  laws  of  any  state,  between,  corporations 
chartered  there  and  those  chartered  elsewhere,  and  to  give 
to  the  former  privileges  which  are  denied  to  the  latter. 
That  policy,  however,  is  not  usual. 

'  The  rights  of  the  citizen,  both  in  the  states  and  in  the 
United  States,  are  formulated  in  a  series  of  limitations 
which  the  constitution  contains,  some  of  them  in  the  orig- 
inal document  and  some  in  the  articles  of  amendment, 
particularly  in  the  first  ten  amendments  which,  taken  to- 
gether, are  commonly  called  the  Bill  of  Rights.  These 
rights,  as  there  stated,  include  the  right  to  be  immune  from 
punishment  by  any  bill  of  attainder  or  ex  post  facto  law, 
to  have  the  privilege  of  the  writ  of  habeas  corpus  except 
when  the  public  safety  may  require  its  suspension,  to  enjoy 
freedom  of  worship,  freedom  of  speech,  freedom  of  the  press, 
freedom  to  assemble  peaceably,  and  freedom  to  petition  the 
government  for  the  redress  of  grievances.  They  include 
likewise  the  right  to  keep  and  bear  arms  when  so  authorized 

1  The  legal  doctrine  may  be  briefly  stated  as  follows :  The  citizenship 
of  a  corporation  is  determined  by  the  citizenship  of  the  persons  composing 
it ;  but  when  the  corporation  receives  its  charter  in  a  state,  the  presumption 
is  that  its  members  are  citizens  of  that  state,  and  this  presumption  may  not 
be  rebutted  by  any  averment  or  evidence  to  the  contrary.  See  Mississippi 
R.  R.  Co.  v.  Wheeler,  1  Black,  286. 


THE  CITIZEN  AND  HIS  RIGHTS  85 

by  the  militia  laws  of  any  state,  to  be  immune  from  the 
billeting  of  soldiers  except  in  time  of  war  and  then  only  in 
a  manner  prescribed  by  law,  to  be  secure  in  person  and  in 
home  against  unreasonable  searches  and  seizures  and  from 
the  issue  of  search-warrants  without  probable  cause  sup- 
ported by  oath,  to  be  given  in  the  federal  courts  all  manner 
of  judicial  protection  including  securities  against  trial  for  any 
serious  crime  except  upon  action  of  a  grand  jury,  and  against 
being  twice  placed  in  jeopardy  for  the  same  offence,  to  be 
assured  a  speedy  and  public  trial  by  jury,  to  be  informed  of 
charges,  confronted  with  witnesses,  to  have  the  assistance 
of  counsel,  to  have  jury  trial  also  in  important  civil  cases, 
to  be  free  from  the  requirement  of  excessive  bail  and  not  to 
be  subjected  to  any  cruel  or  unusual  punishment.  Finally 
they  comprise  the  right  to  be  free  from  bondage  or  involun- 
tary servitude  save  as  a  punishment  for  crime ;  the  right  to 
be  protected  in  life,  liberty,  or  property  unless  deprived 
thereof  by  due  process  of  law,  and  to  receive  in  all  parts  of 
the  Union  the  equal  protection  of  the  laws. 

This  long  enumeration  of  the  citizen's  rights  is  not  to  The  fore- 
be  construed,  the  constitution  expressly  provides,  to  deny  fg01^.1181 
or  disparage  others  retained  by  the  people.     It  does  not,  exhaustive, 
accordingly,  profess  to  be  a  complete  catalogue  of  them  all, 
but  only  of  the  fundamental  ones.     Taken  together  they 
form,  nevertheless,  a  large  portion  of  the  general  category 
known  to  students  of  American  government  as  "  constitu- 
tional limitations."     The  exact  scope  of  these  limitations, 
however,  will  be  the  theme  of  a  later  chapter.1 

In  general,  we  hear  far  more  about  "natural  rights"  Correlation 
and  the  "rights  of  the  citizen"  than  we  do  about  natural 
and  civic  duties.  Yet  every  right,  of  whatever  sort,  carries 
a  duty  and  a  responsibility  along  with  it.  What,  then,  are 
the  duties  of  the  citizen  ?  They  are  not  definitely  set  forth 
in  the  constitution,  it  is  true,  but  they  are  implied  by  the 
very  nature  of  free  government.  The  citizens  of  a  democ- 
racy who  act  upon  the  assumption  that  popular  government 
prefigures  rights  alone  will  in  time  have  no  rights  worthy 
of  the  name.  Popular  government  implies  not  only  govern- 
ment for  the  people  but  government  by  the  people.  The 

1  See  ch.  xx. 


86 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


Proper  per- 
formance 
of  civic 
duties  is 
essential 
to  good 
govern- 
ment. 


But  in  a 
true  democ- 
racy the 
citizen 
will  per- 
form his 
civic  duties 
if  given  a 
fair  chance. 


latter  makes  large  demands  in  the  way  of  patriotism,  self- 
sacrifice,  public  spirit,  intelligence,  and  activity.  No  one, 
therefore,  should  fix  his  eyes  upon  his  civic  rights  to  the 
exclusion  or  to  the  derogation  of  that  equally  important 
factor  in  free  government,  civic  duties. 

The  constitution  of  the  United  States  guarantees  to  every 
citizen  that  he  shall  have  the  privilege  of  living  under  a 
"republican  form  of  government/'  But  the  literal  terms  of 
this  guarantee  do  not  mean  much.  A  government  may 
be  republican  in  form  and  yet  be  a  very  bad  government, 
autocratic,  inefficient,  and  corrupt.  All  the  governments 
of  Central  and  South  America  are  republican  in  form,  yet 
most  of  them  have  never  been  popular  governments  and 
some  are  nothing  but  guerilla  dictatorships.  A  republican 
form  of  government  will  provide  and  preserve  the  blessings 
of  liberty  to  such  extent  as  its  citizens  may  entitle  themselves 
by  their  intelligence,  patriotism,  initiative,  and  forbearance. 
"Every  nation,"  somebody  once  wrote,  "has  as  good  or  as 
bad  government  as  it  deserves."  That  is  sound,  democratic 
doctrine.  The  excellences  of  a  constitution  or  of  laws  will 
avail  little  if  the  actual  machinery  of  government  be  not 
kept  to  the  proper  pitch  of  efficiency  and  responsiveness. 
Political  philosophers  talk  of  a  "government  of  laws,  nof  of 
men,"  but  the  world  has  never  seen  such  a  government.  All 
laws  outside  of  Holy  Writ  depend  for  their  actual  applica- 
tion, interpretation,  and  enforcement  upon  human  agencies. 

It  is  the  crowning  glory  of  a  democratic  form  of  govern- 
ment, however,  that  the  people  can  be  counted  upon  to  do 
their  duty.  Where  they  fail,  it  will  usually  be  found  that 
their  democracy  has  been  spurious.  Democracy  has  often 
been  badly  alloyed  with  political  autocracy  by  reason  of 
party  manipulations,  cumbrous  nominating  machinery, 
the  blanket  ballot,  lobbying  in  legislatures,  and  by  the  vari- 
ous other  appurtenances  of  ramshackle  government.  If 
the  issues  can  be  fairly  set  before  the  citizens,  however, 
they  can  invariably  be  depended  upon  to  do  their  share. 
Genuine  democracy  spells  patriotism.  Were  it  not  so, 
democracy  would  have  a  poor  chance  of  survival,  since 
autocracy  is  in  many  ways  a  more  simple  and  less  expensive 
form  of  rule. 


THE  CITIZEN  AND  HIS  RIGHTS  87 

The  duties  of  the  citizen  in  a  free  land  are  too  numerous  Some  out- 
and  too  varied  to  be  set  down  on  the  pages  of  any  man's  Jut^es^l 
book.  Their  name  is  legion.  The  duty  to  know  his  coun-  the  citizen 
try's  history  and  to  be  proud  of  it ;  to  understand  his  own 
government  and  to  honor  it ;  to  know  the  laws  and  to  obey 
them;  to  be  respectful  of  all  duly  constituted  authority; 
to  be  loyal  in  action,  word,  and  thought ;  to  look  upon  the 
privilege  of  the  suffrage  as  a  sacred  thing  and  to  use  it  as 
becometh  a  sovereign  prerogative;  to  bear  his  portion  of 
the  common  burdens  cheerfully ;  to  serve  in  public  office 
at  personal  sacrifice  and  to  regard  it  as  a  public  trust ; 
to  fight  and  die  if  need  be  in  the  nation's  cause  —  these 
are  the  first  obligations  which  a  free  government  imposes 
upon  its  citizens.  The  vision  of  duties  as  well  as  of  rights 
must  be  always  before  the  citizen's  eyes,  for  where  there  is 
no  vision  the  people  perish. 


CHAPTER  VII 


The  need 
of  a  cen- 
tralized 
executive. 


A  single 
executive 
decided 
upon. 


THE    PRESIDENT 

IN  the  Articles  of  Confederation  there  was  no  provision 
for  a  chief  executive.  The  Congress  of  the  Confederation 
chose  its  own  presiding  officer,  but  he  had  no  executive 
powers,  and  such  executive  work  as  could  not  be  performed 
by  the  Congress  itself  was  deputed  either  to  specially  ap- 
pointed officials  or  to  committees.  This  arrangement  proved 
far  from  satisfactory  as  any  one  who  reads  Washington's 
letters  will  learn,  and  the  framers  of  the  constitution  agreed 
that  in  the  new  government  a  strong  and  separate  executive 
was  necessary.  Their  experience  during  the  years  prior 
to  1787  had  clearly  taught  this  lesson,  for  the  need  of  a  su- 
preme guiding  hand  had  been  sorely  felt  on  many  occasions 
during  the  critical  days  of  the  Revolutionary  War.  But 
how  the  executive  should  be  chosen,  whether  he  should  be 
independent  of  Congress  or  not,  and  what  powers  he  should 
have  —  these  matters  were  not  so  easily  decided.  No  part 
of  the  convention's  work  gave  it  more  trouble,  or  caused 
so  many  changes  of  front,  or  seemed  less  calculated  to  inspire 
a  feeling  of  satisfaction  when  the  task  was  done. 

As  to  the  proper  organization,  powers,  and  functions  of 
the  executive  there  were,  at  the  outset,  nearly  as  many 
different  opinions  as  there  were  delegates.  The  examples 
of  arbitrary  power  afforded  by  the  reign  of  George  III  led 
some  to  favor  the  idea  of  a  plural  executive  or  group  of 
persons  no  one  of  whom  should  be  superior  to  the  others, 
but  all  of  whom  should  act  by  joint  decision.  This  would 
provide  security  against  executive  despotism.  It  was 
realized,  however,  that  whatever  might  thereby  be  gained 
in  security  would  be  more  than  offset  by  the  ever  present 
danger  of  friction  and  conflict  of  opinion  in  national  emer- 

88 


THE  PRESIDENT  89 

gencies.  So  the  convention  finally  committed  itself  to 
the  single  executive  plan.  This  was  an  eminently  wise 
decision,  for  history  had  not  disclosed  plural  executives  to 
be  satisfactory  either  in  peace  or  war.  The  Directory 
which  handled  the  affairs  of  the  new  French  republic  during 
the  years  1795-1800  was  soon  to  give  a  fresh  demonstra- 
tion of  that  fact. 

Having  decided  to  place  the  supreme  executive  authority  His  position 
in  the  hands  of  a  single  individual  to  be  called  the  President, 
the  next  question  concerned  the  method  of  selecting  this 
official.  Many  of  the  delegates  favored  a  proposal  to  let 
Congress  choose  the  President,  and  that  plan  was  provision- 
ally adopted.  But  later  on,  when  the  convention  became 
convinced  that  this  arrangement  would  virtually  destroy 
the  whole  system  of  checks  and  balances,  the  question  was 
reopened  and  finally  settled  in  an  entirely  different  way, 
namely,  by  the  expedient  of  indirect  election.  There  were 
a  few  who  favored  direct  popular  election,  but  the  majority 
were  unalterably  opposed  to  that  plan,  regarding  it  as  the 
open  door  to  the  choice  of  demagogues  and  perhaps,  event- 
ually, to  the  usurpation  of  monarchical  power.  The  fear 
that  somehow  or  other  a  monarchy  might  grow  out  of  the 
new  national  government  haunted  the  delegates  at  every 
turn,  and  they  were  desirous  of  guarding  against  such  a 
possibility  in  every  practicable  way.  On  the  other  hand, 
they  were  equally  disinclined  to  set  up  a  mere  paper  execu- 
tive with  the  functions  of  a  figurehead,  the  mere  creature 
of  Congress  and  incapable  of  effective  leadership.  What 
they  did,  accordingly,  was  to  give  the  President  a  position 
of  circumscribed  independence  with  powers  which  they 
deemed  to  be  adequate  in  normal  times  and  which  might 
be  considerably  expanded  if  emergencies  should  arise.1 

What  was  the  mechanism  finally  adopted  by  the  con-  The  original 
vention    for    securing    the    choice   of    President?     It    was 
relatively  simple  and  allowed  a  large  degree  of  latitude  to  the 
the  states.     Briefly,   the   constitution  provided  that   each  President- 
state  should  "appoint"  in  "such  manner  as  the  legislature 
thereof  may  direct"  a  number  of  "electors"  equal  to  the 

1  The  development  of  the  presidential  office  is  fully  discussed  in  Edward 
Stanwood's  History  of  the  Presidency  (2  vols.,  Boston,  1916). 


90        THE  GOVERNMENT  OF  THE  UNITED  STATES 


Motives 
which 
dictated 
the  selec- 
tion of  this 
mechanism. 


state's  combined  quota  of  senators  and  representatives  in 
Congress.  A  state  having,  for  example,  two  senators  and 
five  representatives  was  thus  to  choose  seven  electors. 
In  due  course  these  electors  were  to  meet,  each  group  in 
their  own  state,  and  were  to  give  their  votes  in  writing  for 
two  persons,  of  whom  both  should  not  be  inhabitants  of 
its  own  state.  These  ballots  were  to  be  sealed  and  trans- 
mitted to  the  president  of  the  Senate,  who  was  directed 
to  count  them  in  the  presence  of  both  Houses  and  to  an- 
nounce the  result.  The  person  receiving  the  most  votes 
was  to  be  President  and  the  one  obtaining  the  next  highest 
number  was  to  be  declared  Vice-President. 

The  ends  which  the  makers  of  this  plan  had  in  mind  were 
made  quite  clear  during  the  debates  in  the  constitutional 
convention.  The  delegates  believed  that  the  selection  of 
the  nation's  chief  executive  officers  should  be  made  solemnly 
and  with  deliberation,  by  electors  specially  chosen  for  this 
task  alone.  It  was  their  hope  that  the  electors  so  gathered 
together  would  be  men  of  high  repute  in  their  respective 
communities,  and  that  the  function  of  choosing  the  President 
would  be  completely  left  to  them  by  the  people.  That, 
indeed,  is  what  happened  at  the  first  two  elections.  Then 
a  different  course  began  to  shape  itself.  At  the  third  elec- 
tion (1796)  it  was  well  understood,  even  before  the  electors 
met,  that  most  of  the  electors  would  vote  for  either  John 
Adams  or  Thomas  Jefferson,  although  in  no  case  were  any 
pledges  exacted.  In  1800  things  were  carried  a  step  further. 
Two  well-defined  political  parties  had  now  arisen,  and  at 
the  election  of  that  year  both  put  forth  their  regular  candi- 
dates. Electors  were  chosen  upon  the  understanding  that 
they  would  vote  for  one  or  the  other  of  these  candidates. 
The  function  of  deliberation  so  far  as  the  electors  were 
concerned  now  became  a  mere  fiction ;  henceforth  the 
electors  were  to  serve  as  mere  automatons,  selected  because 
they  would  do  what  they  were  told  to  do.  The  heart  of 
the  original  plan  was  thus  cut  out  within  ten  years,  and 
never  since  has  there  been  any  serious  attempt  to  restore  it. 
The  mechanism  of  indirect  election  has  been  retained  because 
no  practical  purpose  would  be  served  by  abolishing  it. 
The  saving  clause  in  the  original  provision,  namely,  "in 


THE  PRESIDENT  91 

such  manner  as  the  legislature  thereof  shall  direct,"  has 
proved  quite  broad  enough  to  permit  the  complete  substitu- 
tion of  direct  for  indirect  election. 

The  constitution  in  its  original  form  provided  that  the  A  defect 
electors  should  vote  for  "two  persons"  without  designat-  JJ^^j 
ing  which  was  the  elector's  choice  for  President  and  which  plan, 
for  Vice-President.  But  this  indefiniteness  led  to  serious 
trouble  at  the  election  of  1800  when  two  aspirants,  Thomas 
Jefferson  and  Aaron  Burr,  each  received  an  equal  number 
of  votes.  Both  candidates  had  been  put  forward  by  the 
same  political  party  with  the  intention  that  Jefferson  should 
be  chosen  President  and  Burr  Vice-President ;  and  the 
electors,  voting  strictly  on  party  lines,  gave  one  as  many 
votes  as  the  other.  Now  the  constitution  made  provision 
that  in  case  of  a  tie  the  House  of  Representatives  should 
determine  the  choice,  and  the  House  did  so,  choosing  Jeffer- 
son President  after  an  exciting  contest.  The  episode  proved, 
however,  that  under  the  party  system  a  tie  vote  might  often 
occur  and  that  a  change  in  the  method  of  voting  would  be 
advantageous.  In  1804,  therefore,  the  Twelfth  Amendment 
was  added  to  the  constitution  providing,  among  other  things, 
that  thereafter  the  electors  in  the  several  states  should 
"name  in  their  ballots  the  person  voted  for  as  President,  and 
in  distinct  ballots  the  person  voted  for  as  Vice-President/' 

For  more  than  seventy  years  thereafter  presidential 
elections  were  held  without  any  trouble  of  a  serious  nature. 
In  1824,  it  is  true,  no  candidate  for  President  received  a 
clear  majority  of  the  electoral  votes,  and  the  House  of  Repre- 
sentatives once  again  had  to  make  a  choice.  There  was 
some  talk  of  changing  the  mechanism  of  election  once  more, 
but  nothing  was  actually  done.  Through  the  political 
tumults  of  the  Civil  War  period  the  system  worked  with-  The  Hayes- 
out  mishap.  It  was  not  until  the  election  of  1876  that  a 
perplexing  difficulty  arose.  From  several  states,  on  that 
occasion,  two  different  sets  of  electoral  votes  were  received. 
Who  should  determine  which  of  these  sets  should  be  counted 
and  which  rejected?  The  constitution  had  not  anticipated 
any  such  eventuality ;  there  was  nothing  in  the  laws,  either 
of  the  United  States  or  of  the  states  themselves,  to  provide 
a  satisfactory  answer.  If  the  president  of  the  Senate,  whose 


92        THE  GOVERNMENT  OF  THE  UNITED  STATES 

duty  it  was  to  open  and  count  the  votes,  should  accept 
one  set  of  returns  from  the  disputed  states,  the  election  of 
Rutherford  B.  Hayes,  the  Republican  candidate,  would 
be  assured ;  if  he  should  accept  the  other,  the  election  would 
go  to  Samuel  J.  Tilden,  his  Democratic  opponent.  As  a 
way  out  of  the  difficulty  it  was  agreed  to  create  a  special 
electoral  commission  of  fifteen  persons,  five  senators,  five 
representatives,  and  five  justices  of  the  Supreme  Court, 
with  authority  to  decide  which  sets  of  votes  should  be 
counted.  The  decisions  of  this  body  determined  the  elec- 
tion of  President  Hayes.1 

While  the  matter  was  eventually  settled  in  this  way 
without  disturbance,  the  situation  was  fraught  with  danger 
for  a  time  and  Congress  sought  to  make  sure  that  a  contro- 
versy of  the  same  sort  should  not  occur  again.  How  to  do 
this,  whether  by  an  entire  reconstruction  of  the  plan  of 
election  (which  would  require  an  amendment  to  the  con- 
stitution) or  by  merely  making  clear  the  procedure  in  cases 
of  doubt  (which  could  be  done  by  law),  was  much  discussed 
its  sequel—  for  some  years.  In  1887  Congress  solved  the  problem  by  a 
°f  statute  which  deals  with  the  subject  of  disputed  votes. 
In  general  each  state  must  now  determine,  in  accordance 
with  its  own  laws,  any  disputed  questions  concerning  the 
choice  of  presidential  electors  from  that  state.  If  in  New 
York,  for  example,  two  groups  of  electors  claim  to  have 
been  chosen  at  the  polls,  the  laws  and  courts  of  New  York 
must  settle  the  dispute  before  the  votes  of  either  contest- 
ing group  can  be  counted. 

From  neither  the  constitution  nor  the  laws,  however, 
can  one  get  an  adequate  idea  of  the  way  in  which  the  Presi- 

1  Of  the  369  electors,  184  were  pledged  to  Tilden  (Democrat),  164  to 
Hayes  (Republican),  and  21  votes  were  in  dispute,  namely,  those  of  South 
Carolina,  Florida,  Louisiana,  and  Oregon.  To  the  electoral  commission 
the  Senate  appointed  three  Republicans  and  two  Democrats,  while  the 
House  of  Representatives  appointed  three  Democrats  and  two  Republi- 
cans. Of  the  five  Supreme  Court  justices,  three  were  Republicans  before 
their  appointment  to  the  bench  and  two  were  Democrats.  Thus  the 
electoral  commission,  as  finally  constructed,  contained  eight  Republicans 
and  seven  Democrats.  All,  however,  took  an  oath  to  decide  the  issue  on 
its  merits  and  impartially.  On  every  disputed  question,  however,  the 
commission  divided  on  straight  party  lines  and  gave  the  entire  twenty- 
one  disputed  votes  to  Mr.  Hayes,  this  being  necessary  to  secure  his  election. 


THE  PRESIDENT  93 

dent  of  the  United  States  is  actually  chosen.1     The  constitu-  The  present 

tion  provided  three  steps  —  the  choice  of  electors,  the  voting  ^J^  °f 

by  electors,  and  the  counting  of  the  votes.     By  usage  two 

other  steps  have  developed,  so  that  there  are  now  five  steps 

in  all.     The  first  three  are  of  great  importance,  while  the 

last  two,  the  voting  by  electors  and  the  counting  of  the 

votes,  have  become  mere  formalities. 

First  of  all  there  is  the  nomination  of  candidates,  a  matter  First  step  : 
on  which  there  is  not  a  word  in  the  constitution,  for  it  was  *f  ^|{£on 
not  intended  that  there  should  be  any  formal  nominations,  dates. 
The  initial  step  is  taken  with  the  calling  of  the  national 
party  conventions.      Each   of   the    great    political    parties  stages  in 
maintains  a  general  executive  body  known  as  its  national  p^^ur™ 
committee,  made  up  of  one  delegate  from  each  state.     Each  Ca)  the  callg 
national  committee  decides  when  and  where  the  convention  for  the 
of  its  own  party  shall  be  held.     Usually  the  calls  are  issued  ventLns!1" 
in  January  of  a  presidential  year,  and  the  conventions  meet 
in  June. 

Then    in    the    following    months    the    different    political  (&)  seiec- 
parties  in  each  state  select  their  own  delegates  to  these  jj^^to1  the 


conventions.2  Every  state  is  entitled  to  twice  as  many  party  con- 
delegates  to  each  convention  as  it  has  senators  and  repre-  ^ 
sentatives  combined.  Massachusetts,  for  example,  has 
two  senators  and  sixteen  representatives.  It  sends,  there- 
fore, thirty-six  delegates  to  each  of  the  national  conven- 
tions. Not  so  many,  as  a  matter  of  fact,  go  to  any  except 
the  Republican  and  Democratic  conventions.  National 
conventions  of  other  parties,  such  as  Prohibition  and  So- 
cialist parties,  rarely  or  never  draw  their  full  quota  from  all 
the  states.  It  is  also  usual  in  the  case  of  the  major  parties 
to  select  an  equal  number  of  alternates,  to  serve  in  case 
regular  delegates  are  absent,  and  these  alternates,  or  most 
of  them,  go  to  the  place  where  the  convention  is  being  held. 
All  delegates  to  national  conventions  are  now  chosen 
at  the  party  primaries,  that  is,  by  the  members  of  each  party 
in  the  various  states  at  ballotings  held  for  the  purpose  or  by 

1  A  full  account  of  both  the  law  and  the  practice  may  be  found  in 
J.  H.  Dougherty's  Electoral  System  of  the  United  States  (N.  Y.,  1906). 

2  The  history  and  methods  of  presidential  nominations  are  fully  dealt 
with  in  F.  W.  Dallinger's  Nominations  for  Elective  Office  in  the  United  States 
(N.  Y.,  1897)  and  in  E.  C.  Meyer's  Nominating  Systems  (Madison,  1902). 


94        THE   GOVERNMENT  OF  THE  UNITED  STATES 


(c)  the 

conven- 
tions. 


(d)  ballot- 
ing on 
nomina- 
tions. 


conventions  made  up  of  party  delegates.  Until  recent 
years  the  delegates  have  been  chosen  to  use  their  own 
discretion  at  the  national  convention,  but  now  the  laws 
of  some  states  permit  the  voters  of  each  party  to  instruct 
or  pledge  their  delegates,  that  is,  to  indicate  on  the  ballot 
what  presidential  candidate  the  delegates  are  to  support  at 
the  convention. 

Then  comes  the  meeting  of  the  convention,  an  unwieldy 
and  often  boisterous  body  of  a  thousand  members  or  more. 
The  Republican  convention  meets  usually  in  one  city,  the 
Democratic  convention  in  another,  and  the  two  do  not 
meet  at  the  same  time.  The  procedure  in  each,  however, 
is  much  the  same.  In  a  great  hall  the  delegates  are  seated 
by  states.  After  the  various  formalities  of  choosing  a 
chairman  and  examining  the  credentials  of  delegates  are 
gone  through,  the  convention  proceeds  to  the  adoption  of 
the  party  platform.  This  platform  has  been  framed  in 
advance  by  a  committee.  Then  nominations  are  called 
for.  The  roll  of  the  states  is  called  in  alphabetical  order, 
Alabama  first  and  Wyoming  last.  The  chairman  of  any 
state  delegation,  or  any  one  deputed  by  him,  may  make  a 
nomination.  The  nominations  are  usually  supported  by 
speeches. 

After  the  nominations  have  been  made  the  balloting  begins. 
At  Democratic  conventions  the  "unit  rule"  is  frequently 
applied,  that  is,  the  vote  of  the  entire  delegation  from  each 
state  is  given  intact,  whenever  the  state  convention  so  directs 
and  the  state  laws  so  permit,  the  majority  in  each  delega- 
tion deciding  how  it  shall  be  cast.  At  Republican  conven- 
tions, on  the  other  hand,  the  votes  of  a  delegation  may 
always  be  split  if  the  delegates  wish,  although  that  does 
not  usually  happen.  At  any  rate,  the  votes  are  given, 
counted,  and  announced.  At  Republican  national  conven- 
tions a  candidate  receives  the  nomination  if  he  secures  a 
clear  majority  of  all  the  delegates ;  at  Democratic  national 
conventions  he  must  obtain  a  two-thirds  vote.  In  either 
case,  when  several  candidates  have  been  placed  in  nomina- 
tion it  is  often  necessary  to  take  ballot  after  ballot  before 
a  choice  is  decided  upon.  The  weaker  candidates  drop  out  ; 
votes  are  shifted  around  on  successive  ballots,  and  the 


THE  PRESIDENT  95 

convention  keeps  at  work  until  a  decision  comes.  Mr. 
Garfield,  in  1880,  was  nominated  on  the  thirty-sixth  ballot. 
The  selection  of  the  party  nominee  for  the  vice-presidency 
is  made  in  the  same  way,  but  usually  with  less  difficulty. 

When  the  party  conventions  have  finished  their  work,  Second 
the  next  step  is  the  nomination  of  electors  in  the  several 
states.  In  each  state  the  political  parties  put  forth  their  of  electors, 
slates  of  electors,  nominated  in  whatever  way  the  state  laws 
prescribe.  In  some  the  electors  are  nominated  at  primaries, 
in  others  by  state  party  conventions.  These  electors  are 
usually  prominent  party  men,  but  must  not  be  federal  office- 
holders. Their  names  go  on  the  ballot  in  parallel  columns, 
and  on  the  Tuesday  after  the  first  Monday  in  November 
the  voters  in  each  state  decide  which  group  of  electors  shall 
be  chosen.  When  the  voter  marks  his  ballot  for  a  certain 
group  of  electors,  however,  he  is  in  reality  indicating  his  Third  step 
preference  for  one  or  other  of  the  candidates  already  named 
by  the  national  conventions.  The  ballots  do  not  bear  the 
names  of  these  nominated  candidates,  or,  if  they  do,  it  is 
only  to  guide  the  voters  in  voting  for  the  desired  group  of 
electors.  To  all  intents  and  purposes,  nevertheless,  the 
balloting  is  just  as  direct  as  though  there  were  no  intervening 
electors  at  all.  The  real  election  takes  place  on  this  elec- 
tion day;  what  occurs  later,  unless  some  unusual  mishap 
occurs,  is  nothing  but  formality. 

Yet  the  constitution  requires  two  further  steps  in  the  Fourth 
election  of  a  President  and  Vice-President.  In  January 
following  the  election  the  electors  chosen  in  each  state  President 
come  to  the  state  capital  and  there  go  through  the  procedure 
of  balloting  for  the  candidates  whom  their  party  nominated 
at  the  national  convention  six  months  before.  No  con- 
stitutional provision  or  law  prevents  them  from  marking 
their  ballots  as  they  please,  voting  for  some  one  other  than 
the  prescribed  candidates,  but  they  never  do  so  unless, 
perhaps,  a  candidate  chosen  by  a  national  party  convention 
has  died  in  the  meantime.  Then  they  vote  as  the  national 
committee  instructs  them  to  vote. 

The  votes  are  attested,  sealed  up,  and  sent  to  Washington. 
In  February  the  president  of  the  Senate  supervises  the 
counting  of  the  votes  in  the  presence  of  both  Houses  of  Con- 


96        THE   GOVERNMENT  OF  THE  UNITED  STATES 


Final  step: 
transmis- 
sion and 
counting  of 
the  votes. 


Lord  Bryce 
on  the 
presidency. 


The  nation 
has  not 
always 
utilized  its 
greatest 
men. 


gress.  As  a  rule  this  is  only  an  uninteresting  ceremony, 
nothing  more.  But  it  may  happen  that  the  result  is  a  tie, 
or  that  no  candidate  has  received  a  clear  majority  of  the 
total  electoral  vote.  In  either  case  the  House  of  Repre- 
sentatives proceeds  to  choose  a  President  from  among  the 
three  candidates  who  have  stood  highest.  In  making  this 
choice,  however,  the  representatives  do  not  vote  as  indi- 
viduals; each  state  has  one  vote  and  the  representatives 
from  a  state  merely  decide  by  majority  action  among  them- 
selves just  how  the  vote  of  their  state  shall  be  cast.  In 
case  the  electoral  college  fails  to  elect  a  Vice-President  by  a 
clear  majority,  the  Senate  makes  the  choice  from  the  two 
highest  candidates,  but  the  senators  vote  as  individuals  and 
not  by  states.  On  only  two  occasions,  the  last  of  them 
more  than  ninety  years  ago,  has  Congress  been  called  upon 
to  make  the  selection.1  The  result  having  been  announced, 
the  inauguration  of  the  President  and  Vice-President  takes 
place  upon  the  following  fourth  of  March. 

In  Lord  Bryce's  admirable  analysis  of  the  spirit  and  work- 
ings of  American  government  a  chapter  is  devoted  to  the 
question,  "Why  great  men  are  not  chosen  Presidents/' 
"Europeans  often  ask,"  wrote  Bryce  in  1884,  "and  Ameri- 
cans do  not  always  explain,  how  it  happens  that  this  great 
office,  the  greatest  in  the  world,  unless  we  except  the  Papacy, 
to  which  anyone  can  rise  by  his  own  merits,  is  not  more 
frequently  filled  by  great  and  striking  men."  "Since  the 
heroes  of  the  Revolution  died  out  with  Jefferson  and  Adams 
and  Madison,"  he  continues,  "no  person  except  General 
Grant  has  reached  the  chair  whose  name  would  have  been 
remembered  had  he  not  been  President,  and  no  President 
except  Abraham  Lincoln  has  displayed  rare  or  striking 
qualities  in  the  chair."  2 

These  statements  are  scarcely  as  defensible  to-day  as 
they  were  thirty  odd  years  ago.  Many  Americans  regard 
Grover  Cleveland  as  a  "great"  President,  even  when  meas- 
ured with  John  Adams  or  James  Madison ;  and  there  are 
few  who  would  deny  to  either  Andrew  Jackson  or  Theodore 

1  The  election  of  Thomas  Jefferson  in  1800  and  of  John  Quincy  Adams 
in  1824. 

2  The  American  Commonwealth,  I,  ch.  vii. 


THE  PRESIDENT  97 

Roosevelt  the  possession  of  " striking  qualities."  Survey- 
ing the  history  of  the  presidency  as  a  whole,  however,  one 
may  properly  admit  that  the  query  propounded  by  Lord 
Bryce  is  a  fair  one  and  deserves  discussion.  The  nation 
has  failed  to  utilize  in  the  presidential  office  a  long  line  of 
notable  statesmen :  Hamilton,  Marshall,  Gallatin,  Webster, 
Clay,  Calhoun,  Seward,  Sumner,  Hay,  and  others.  On  the 
other  hand,  it  has  bestowed  its  highest  honor  on  men  like 
Polk,  Fillmore,  Pierce,  and  Arthur,  of  whom  no  one  now 
knows  much  except  that  they  are  on  the  roll  of  the  Presi- 
dents. Certain  it  is,  at  any  rate,  that  things  have  not 
turned  out  exactly  as  the  Fathers  of  the  Republic  intended, 
for  Hamilton  in  1788  voiced  the  prediction  that  in  view  of 
the  plan  of  indirect  election  provided  by  the  constitution 
"  the  office  of  President  will  seldom  fall  to  the  lot  of  any  one 
who  is  not  in  an  eminent  degree  endowed  with  the  requisite 
qualifications.  ...  It  will  not  be  too  strong  to  say  that 
there  will  be  a  constant  probability  of  seeing  the  station 
filled  by  characters  preeminent  for  ability  and  virtue. " 
*  In  the  United  States  several  factors  have  contributed  Factors 
from  time  to  time  in  placing  at  the  head  of  the  nation  men  YhJch  • 

-,          ,.  ,  ,.-       ,.  -  ,     determine 

who  did  not  possess  conspicuous  qualifications  for  so  great  the  choice 
a  responsibility.     In  the  first  place,  the  greatest  asset  of  pr*gident. 
one  who  aspires  to  political  office  in  any  country  having  1  accept. 
a  free  government  is  the  general  quality  of  being  acceptable  ability 
to  a  wide  variety  of  political  interests.     A  candidate  is 
acceptable,  if  his  temperament,  his  associations,   and  his  interests. 
reputation  seem  to  fit  the  political  needs  of  the  moment. 
These  needs  are  sometimes  easy  to  meet ;    at  other  times 
very  difficult.     At  the  approach  of  one  election  campaign 
there  may  be  many  aspirants  with  the  desired  qualities; 
at  other  times  a  party  may  be  hard  pressed  to  find  any  one 
who  comes  at  all  near  the  assumed  requirements.     It  often 
happens,  therefore,  that  one  who  is  by  common  agreement 
the  strongest  possible  candidate  in  one  year  may  be  wholly 
out  of  the  running  a  year  or  two  later.     The  political  stage 
shifts  its  background  quickly. 

Long  experience  in  political  life  is  one  of  the  things  which  2.  experi 
ought  to  make  one  an  acceptable  candidate  for  high  office ;  thtTiack 
but  in  practice  it  usually  does  not.     The  man  who  spends  of  it. 


98 


THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.  the  in- 
fluence 
of  the 
"pivotal" 
states. 


a  long  term  in  the  public  service  has  either  proved  himself 
a  trimmer  or  else  by  standing  up  courageously  for  his  own 
opinions  has  made  himself  many  enemies.  If  he  has 
served  several  terms  in  Congress,  he  has  necessarily  sup- 
ported some  measures  and  opposed  others.  He  has  probably 
offended  some  elements  of  his  own  party.  He  is  indeed 
fortunate  if  he  has  not  antagonized  some  economic  interests 
and  made  himself  unpopular  in  various  sections  of  the 
country.  In  other  words  he  has  "made  a  record,"  and  a 
public  record,  no  matter  how  good  it  may  be,  usually  pre- 
sents opportunities  for  partisan  or  sectional  attack.  The 
Elaine-Cleveland  campaign  of  1884  afforded  a  good  illus- 
tration of  this  factor.  Mr.  Elaine  had  given  the  country 
twenty  years  of  aggressive  service  in  Congress.  Mr.  Cleve- 
land had  all  the  advantage  of  being  only  three  years  in  the 
public  eye,  and  of  never  having  held  a  national  office  at 
all.  Mr.  Blaine  was  beaten  by  the  enemies  he  had  made 
in  his  congressional  career.  A  considerable  section  of  his 
own  party,  although  fully  recognizing  his  personal  ability 
and  his  qualifications  for  the  presidential  post  by  reason 
of  long  familiarity  with  national  problems,  had  been  antago- 
nized by  his  record  in  Congress.  Of  the  five  Presidents 
since  the  first  election  of  Cleveland,  only  one,  Mr.  McKinley, 
had  served  in  Congress  prior  to  assuming  the  presidential 
office.  All  the  others  had  been  in  public  life  as  governors 
of  states  or  of  insular  possessions ;  but  they  had  not  identified 
themselves  too  closely  with  matters  of  national  legislation. 
It  is  strategically  desirable,  again,  that  presidential 
candidates  shall  be  taken  from  what  are  called  the  pivotal 
states.  This  results  from  the  fact  that  the  outcome  of  the 
election  is  not  determined  by  the  plurality  of  the  total  votes 
cast  by  the  people  but  by  a  majority  of  the  electors  chosen. 
The  successful  candidate  must  carry  enough  states  to  con- 
trol this  majority,  and  he  may  do  this  (and  sometimes  has 
done  it)  without  getting  a  popular  majority.  At  the  elec- 
tion of  1860  Lincoln's  electors  received  a  million  fewer 
votes  than  those  of  his  opponents,  yet  he  had  a  comfortable 
majority  in  the  electoral  college.  Harrison  in  1888  and 
Wilson  in  1912  received  a  minority  of  the  popular  ballots, 
but  were  elected  nevertheless.  A  majority  of  many  thou- 


THE  PRESIDENT  99 

sands  in  any  state  is  no  better  for  practical  purposes  than  a 
majority  of  one.  When  Cleveland  carried  New  York  by 
less  than  twelve  hundred,  he  captured  that  state's  entire 
slate  of  presidential  electors.  A  change  of  six  hundred 
ballots  would  have  given  the  electoral  vote  of  the  state,  and 
with  it  the  election,  to  his  opponent. 

An  aspirant  from  a  small  state  is,  therefore,  at  a  disad- 
vantage as  compared  with  one  from  a  large  state,  for  a  presi- 
dential candidate  should  at  least  carry  his  own  state  and 
it  ought  to  be  a  state  worth  carrying.  The  man  who  can 
deliver  the  twenty-two  electoral  votes  of  Ohio  is,  accord- 
ingly, a  better  candidate,  if  other  things  are  equal,  than 
the  one  who  could  bring  with  him  merely  the  three  votes 
of  Nevada.  It  is,  moreover,  not  merely  a  question  of  carry- 
ing one  state,  sometimes,  but  a  whole  group  of  neighboring 
states,  of  swinging  New  England,  or  the  Middle  West,  into 
line.  Another  consideration  also  comes  in.  Many  states 
are  sure  states,  that  is,  they  can  be  carried,  under  normal 
conditions,  by  the  regular  candidate  of  one  or  other  political 
party  no  matter  who  he  is  or  where  he  comes  from.  Nearly 
all  the  southern  states  are  in  this  class.  They  are  solidly 
Democratic.  Why  then  nominate  a  Southerner  as  the 
Democratic  candidate  ?  It  is  the  big,  doubtful  states  which  ' 
count,  that  is,  the  states  like  New  York  and  Ohio,  which  are 
not  so  strongly  welded  to  the  fortunes  of  either  party.  Every 
President  since  the  Civil  War  has  come  from  Ohio  or  New 
York,  with  the  exception  of  Woodrow  Wilson,  whose  state 
is  New  York's  next-door  neighbor. 1 

Many  other  factors  influence  the  choice  of  candidates.  4.  personal 
Religious  affiliation,  business  association,  party  loyalty,  factors- 
the  general  impression  which  a  candidate  will  make  upon 
the  public  imagination  must  all  be  taken  into  account. 
Yet  none  of  these  things  is  necessarily  related  to  the 
possession  of  "  great  and  striking  qualities "  in  a  man. 
The  ablest  statesman  in  the  land  may  be  inferior,  in  point 
of  political  availability,  to  some  favorite  son  of  a  pivotal 
state.  Great  men  do  not  always  make  strong  candidates, 
and  it  is  the  business  of  the  national  conventions  to  select 
candidates,  not  Presidents. 

1  Harrison,  though  a  resident  of  Indiana,  was  born  in  Ohio. 


100      THE  GOVERNMENT  OF  THE  UNITED  STATES 


5.  the  time 
of  the 
election. 


Ups  and 
downs  of 
the  presi- 
dency. 


The  policy  of  fixing  rigidly  the  date  at  which  a  presidential 
election  shall  take  place  has  also  had  its  effect.  In  England 
a  general  election  must  ordinarily  occur  at  least  once  in  every 
five  years.  But  within  this  limit  an  administration  can 
"go  to  the  country"  whenever  it  pleases.  It  can  avoid  a 
time  when  public  opinion  seems  to  be  running  adversely 
and  can  choose  a  moment  when  some  striking  administra- 
tive success  or  some  popular  stroke  may  operate  heavily 
in  its  favor.  In  America  the  party  leaders  cannot  do  this. 
They  must  take  the  times  as  they  are.  If  the  presidential 
election  comes  along  during  a  year  of  business  depression 
or  of  slender  harvests,  the  party  in  power  is  likely  to  be  at 
a  disadvantage.  Candidates  are  chosen  to  suit  the  times  ; 
there  are  fair-weather  candidates  and  there  are  those  to 
whom  the  parties  are  more  apt  to  turn  when  the  skies  are 
darkening. 

Yet  the  presidency,  when  all  is  said,  has  maintained  a 
reasonably  high  level  of  ability  and  statesmanship,  save  for 
a  lapse  at  one  period.  It  has  been  "one  thing  at  one  time, 
another  at  another,  varying  with  the  man  who  occupied 
the  office  and  with  the  circumstances  that  surrounded  him/7 1 
During  the  first  thirty-five  years  of  its  existence  the  standard 
was  high.  No  wonder  men  felt  that  the  arrangements 
devised  by  the  constitution  had  proved  a  great  success. 
Washington,  Adams,  Jefferson,  and  Madison  represented 
the  best  the  country  could  give.  All  the  Presidents  prior  to 
Andrew  Jackson,  indeed,  were  just  about  what  the  framers 
of  the  constitution  expected  the  incumbents  of  the  office  to 
be.  Jackson,  first  elected  in  1828,  was  not  a  man  of  great 
intellectual  qualities ;  but  he  was  surely  an  aggressive 
and  virile  figure,  the  personification  of  a  new  era  in  the 
nation's  politics.  His  successor,  Van  Buren,  has  been 
accurately  characterized  as  a  "first-rate  second-class  man," 
which  is  rather  more  than  can  be  said  of  any  among  the 
seven  presidents  who  intervened  between  him  and  Lin- 
coln.2 During  this  quarter  of  a  century,  the  mediocrities 
had  their  day,  varied  on  two  occasions  by  the  election  of 

1  Woodrow   Wilson,    Constitutional    Government   in   the    United   States 
(N.  Y.,  1911),  p.  57. 

2  T.  F.  Moran,  American  Presidents  (N.  YM  1917). 


THE  PRESIDENT  101 

soldiers  who  had  made  reputations  in  the  War  of  1812  or 
in  the  Mexican  war.  The  outstanding  figures  of  American 
statesmanship  during  this  period,  Webster  and  Clay  among 
them,  were  either  passed  over  by  conventions  or  defeated 
at  the  polls.  In  the  late  fifties,  accordingly,  it  might  well 
have  been  said  that  the  presidency  was  entirely  failing  to 
justify  the  high  hopes  placed  upon  it  by  the  creators  of  the 
constitution. 

Then  came  the  election  of  Lincoln  and  the  Civil  War. 
In  Lincoln's  day  the  prestige  and  powers  of  the  presidency 
rose  enormously.  And  after  a  lurid  interval  marked  by 
unseemly  quarrels  between  Congress  and  Andrew  Johnson 
(who  became  President  on  Lincoln's  death)  General  Grant 
was  chosen  as  the  nation's  chief  executive  on  his  military 
reputation  alone.  It  is  yet  too  early  to  determine  how 
posterity  will  regard  the  line  of  Presidents  since  Grant 
finished  his  second  term.  As  for  prior  political  experience, 
Hayes,  Harrison,  Cleveland,  Roosevelt,  and  Wilson  were 
governors  of  states  before  becoming  candidates  for  the 
presidency,  while  Taft  had  served  as  governor-general  of 
the  Philippines.  During  the  last  fifty  years,  in  fact, 
the  governorship  of  any  one  of  the  great  doubtful  states 
has  become  a  far  more  reliable  stepping-stone  for  presi- 
dential aspirants  than  long  or  conspicuous  service  in  Con- 
gress. This  is  natural  enough.  The  man  who  can  secure  a 
large  plurality  as  a  candidate  for  governor  in  his  own  state 
is  reasonably  sure  to  carry  it  with  him  at  the  national  elec- 
tion. He  has  shown  his  vote-getting  power.  Moreover, 
the  experience  which  a  governor  gains  in  office  is  exactly 
in  line  with  what  he  most  needs  as  President,  and  the 
governor's  post  always  gives  its  occupant  the  chance  to 
initiate  striking  reforms,  to  declare  policies,  to  show  just 
what  he  stands  for.  One  may,  from  the  nature  of  things, 
be  a  long  time  in  the  Senate  or  House  without  obtaining 
any  such  opportunity.  There  a  member  is  bound  by  the 
trammels  of  party  loyalty,  and  the  stand  he  takes  is  often 
determined  for  him  by  the  party  caucus  or  by  the  force  of 
circumstances  beyond  his  own  control. 

The  history  of  the  presidency,  therefore,  falls  into  four 
periods :  the  first  from  Washington  to  John  Quincy  Adams, 


THE  GOVERNMENT  OF  THE  UNITED  STATES 

inclusive  (1789-1829),  when  the  government  was  "getting 
a  footing  both  at  home  and  abroad,  struggling  for  its  place 
among  the  nations  and  its  full  credit  among  its  own  people ; 
when  English  precedents  and  traditions  were  strongest ; 
and  when  the  men  chosen  for  the  office  were  men  bred  to 
leadership  in  a  way  that  attracted  to  them  the  attention 
and  confidence  of  the  whole  country."  l  The  second  period, 
from  Jackson  to  Buchanan  (1829-1861),  was  a  day  of 
cruder  and  more  intense  politics,  with  the  influence  of  the 
frontier  making  itself  dominant  while  sectionalism  worked 
havoc  with  the  solidarity  of  political  parties.  The  third 
era,  from  Lincoln  to  Arthur  (1861-1885),  was  dominated 
by  the  war  and  its  legacies,  including  the  question  of  green- 
backs, to  the  exclusion  of  most  other  things.  Finally,  in 
the  epoch  between  the  first  election  of  Cleveland  in  1884 
and  the  opening  of  the  European  War  in  1914  questions  of 
domestic  policy  were  once  more  uppermost  in  the  minds 
of  the  people,  and  the  presidency  neither  rose  to  the  heights 
of  the  first  period  nor  descended  to  the  depths  of  the 
second. 

QUO  vadisf  As  for  the  future,  there  is  nothing  to  indicate  the  probabil- 
ity of  any  marked  change  from  the  course  which  has  so 
long  been  run.  The  presidential  primary  system  of  select- 
ing delegates  to  the  national  conventions  and  of  pledging 
these  delegates  in  advance  has  already  been  adopted  in 
many  states  and  is  not  unlikely  to  gain  acceptance  in  all 
the  others.  What  effect  its  use  would  have  upon  the  selec- 
tion of  candidates,  if  adopted  by  them  all,  is  hard  to  say. 
Delegates  cannot  well  be  sent  to  national  conventions  with 
definite  instructions  covering  all  eventualities.  Situations 
will  at  times  arise  in  which  a  delegation  must  be  free  to  act. 
The  candidate  to  whom  they  were  pledged  may  withdraw 
or  his  chances  of  nomination  may  altogether  disappear. 
Then  the  delegation  must  have  discretion.  The  pledging 
process  can  hardly  ever  operate  conclusively  unless  the 
nation-wide  fight  narrows  down  to  two  or  three  candidates, 
and  this,  if  the  future  is  anything  like  the  past,  it  is  not  apt 
to  do. 

Will  the  use  of  the  presidential  primary  secure  the  nomi- 
1  Woodrow  Wilson,  Ibid.,  p.  58. 


THE  PRESIDENT  103 

nation  of  better  candidates  ?  Probably  not.  State  con-  win  the 
ventions,  as  nominating  bodies,  have  been  in  many  parts 
of  the  Union  supplanted  by  state  primaries.  The  results 
have  not  been  up  to  expectations.  Campaigns  for  the 
nomination  have  become  far  more  expensive  to  candidates 
and  their  political  friends ;  the  voters  are  called  out  to  the 
polls  on  an  additional  occasion ;  the  deliberations  and  com- 
promises which  marked  a  convention  are  no  longer  possible ; 
and  on  the  whole  there  has  been  no  appreciable  improve- 
ment in  the  types  of  men  nominated.  If  any  improvement 
in  the  great  and  striking  qualities  of  American  presi- 
dents is  to  be  sought,  therefore,  it  will  probably  have  to 
be  by  some  more  comprehensive  plan  than  the  selection 
and  pledging  of  delegates  at  presidential  primaries. 

The  remuneration  of  the  President  is  fixed  by  Congress,  Salary  and 
but  it  may  not  be  either  increased  or  diminished  during  allowances- 
the  term  for  which  he  was  elected.     At  present  it  is  $75,000 
per  annum.     In  addition,  various  appropriations  for  secre- 
taries, clerks,  travelling  expenses,  the  care  and  maintenance 
of  the  White  House,  and  so  on  are  annually  made,  amount- 
ing to  more  than  a  quarter  of  a  million  dollars. 

"In  case  of  the  removal  of  the  President  from  office,  or  Succession 
of  his  death,  resignation,  or  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  upon 
the  Vice-President."  l  On  five  occasions  since  1789  the 
death  of  a  President  has  devolved  his  duties  upon  the  Vice- 
President  in  accordance  with  this  provision  of  the  constitu- 
tion. No  President  has  resigned  and  in  no  case  has  the 
devolution  come  because  of  inability  to  discharge  the 
presidential  functions,  although  President  Garfield  during 
his  last  illness  was  for  more  than  two  months  in  1881  physi- 
cally unable  to  perform  any  important  official  act.  In  case 
the  Vice-President  is  for  any  reason  not  available  to  succeed 
the  President,  the  constitution  gives  Congress  the  right  to 
determine  the  order  of  succession,  and  Congress  has  so  pro- 
vided by  law,  naming  the  various  cabinet  officers  according 
to  the  seniority  of  their  posts :  the  Secretary  of  State,  the 
Secretary  of  the  Treasury,  and  so  on.  But  no  one  of  these 
officials  may  in  any  event  succeed  to  the  presidency  if  he 
1  Article  ii,  Section  1, 


104      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  vice- 
presidency. 


Constitu- 
tional 
qualifica- 
tions of 
the  Presi- 
dent and 
the  Vice- 
President 


be  constitutionally  ineligible.  Where  a  vacancy  occurs 
in  the  office  of  Vice-President,  it  is  not  filled  till  the  next 
election. 

A  few  words,  but  only  a  few,  should  be  added  with  refer- 
ence to  the  vice-presidency.  The  framers  of  the  constitu- 
tion intended  the  office  to  be  a  dignified  and  important 
one,  its  incumbent  to  be  a  man  second  only  to  the  President 
in  the  favor  of  the  electors.  During  the  first  few  decades 
that  idea  persisted ;  but  with  the  practice  of  nominating  the 
candidates  at  national  conventions  it  was  gradually  lost 
to  view.  During  the  last  fifty  or  sixty  years  the  vice-presi- 
dential nomination  has  been  used,  for  the  most  part,  as  a 
means  of  strengthening  the  party  ticket.  It  has  gone  to 
some  one  who  can  placate  a  discontented  faction  of  the 
party,  or  bring  some  doubtful  state  into  line,  or  secure  large 
contributions  to  the  party's  campaign  funds.  The  personal 
merit  and  capacity  of  the  candidate  usually  count  for  very 
little. 

No  one  is  eligible  to  the  presidency  or  the  vice-presi- 
dency, either  by  election  or  by  succession,  unless  he  be  a 
natural-born  citizen,  thirty-five  years  of  age  or  more,  and 
unless  he  shall  have  been  a  resident  of  the  United  States 
for  at  least  fourteen  years.  A  special  exemption  was  made 
in  the  constitution  for  those  who  were  citizens  at  the 
time  of  its  adoption,  this  being  done  as  a  matter  of  courtesy 
to  Alexander  Hamilton,  James  Wilson,  and  others  who, 
although  not  born  in  the  territory  which  formed  the  Union, 
had  taken  a  considerable  share  in  establishing  the  new 
government. 


CHAPTER  VIII 

PRESIDENTIAL   POWERS  AND   FUNCTIONS 

FREE  government  has  developed  two  different  types  of 
executive  power,  which  are  commonly  known  as  parlia-  presidential 
mentary  and  presidential,  or,  as  they  are  sometimes  called,  executives, 
responsible  and  independent,  respectively.  A  parliamentary 
or  responsible  executive  is  one  which  derives  its  power 
from  the  legislature  and  is  responsible  to  that  body  for  all 
its  official  acts.  Under  this  arrangement  the  legislature 
is  the  supreme  organ  of  government,  for  it  can  change  the 
executive  at  any  time.  England  is  the  classic  example  of  a 
country  with  a  parliamentary  executive,  the  prime  minis- 
ter being  directly  responsible  to  the  House  of  Commons. 
A  presidential  or  independent  executive,  on  the  other  hand, 
derives  its  powers  not  from  the  legislature,  but_irojil_.the 
people  directly,  and  forms  a  coordinate  branch  of  the  govern- 
ment. Such  an  executive  is  not  responsible  to  the  legis- 
lature, which  cannot  alter  its  tenure  or  prerogatives.  The 
United  States  affords  the  best  example  of  this  type.  The 
powers  of  the  President  are  on  the  same  solid  ground  as  are 
those  of  Congress.  They  are  more  varied,  more  compre- 
hensive, and  more  momentous  than  those  possessed  by  the 
national  executive  of  any  other  land.1 

The  powers  and  functions  of  the  President  may  be  con- 
veniently grouped  under  the  five  main  heads  of  strictly 

1  For  the  views  of  recent  Presidents  concerning  what  the  functions  of 
the  presidential  office  are,  or  ought  to  be,  the  reader  may  be  referred  to 
W.  H.  Taft's  Our  Chief  Magistrate  and  his  Powers  (N.  Y.,  1916) ;  Grover 
Cleveland's  Presidential  Problems  (N.  Y.,  1904) ;  Theodore  Roosevelt's 
Autobiography  (N.  Y.,  1913),  especially  ch.  x. ;  Benjamin  Harrison's 
This  Country  of  Ours  (N.  Y.,  1898),  especially  chs.  iv-xix;  and  Woodrow 
Wilson's  Constitutional  Government  in  the  United  States  (N.  Y.,  1911), 
ch.  iii. 

105 


106      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Classifica- 
tion of  the 
President's 
powers. 

1.    Strictly 

executive 

powers. 


(a)  appoint- 
ments. 


Limitations 
upon  the 
appointing 
power  : 
senatorial 
confirma- 
tion. 


executive,  diplomatic,  legislative,  military,  and  political. 
The  first  four  are  devolved  upon  him  by  the  constitution 
and  the  laws ;  the  last  is  an  outgrowth  of  the  party  system. 

The  President  is  the  nation's  chief  executive.  The 
constitution  enjoins  him  to  "take  care  that  all  the  laws  be 
faithfully  executed."  While  the  government  of  the  United 
States  is  designed  to  be  "a  government  of  laws,  not  of 
men/7  laws  are  not  self-executing.  They  must  have  officials 
to  apply  them  and  courts  to  enforce  them.  As  chief  executive, 
accordingly,  the  President  is  authorized  to  appoint  both  the 
administrative  officials  of  the  federal  government  and  the 
judges  of  the  federal  courts.  This  places  in  his  hands  one 
of  the  most  important  executive  powers  that  he  exercises. 
It  gives  him  more  political  influence  than  he  derives  from 
any  other  function  intrusted  to  him.  The  constitution 
divides  all  appointive  offices  into  two  classes,  namely,  those 
higher  posts  which  must  be  filled  by  the  President  with  the 
advice  and  consent  of  the  Senate  and  those  "inferior"  offices 
which  should  be  filled,  if  Congress  should  so  provide,  by  the 
President  alone,  or  by  the  heads  of  departments  or  by  the 
courts.  In  the  category  of  higher  offices,  appointed  by  the 
President  with  the  concurrence  of  the  Senate,  are  the  mem- 
bers of  the  Cabinet,  all  ambassadors,  ministers,  and  consuls, 
all  judges  and  court  officials,  members  of  the  various  federal 
commissions  such  as  the  Interstate  Commerce  Commission, 
the  Federal  Trade  Commission,  and  the  Tariff  Board, 
together  with  postmasters  in  the  larger  communities  and 
officials  who  have  to  do  with  the  collection  of  revenues. 
In  all  such  cases  the  President  sends  his  nomination  to  the 
Senate,  and  this  body  may  confirm  or  reject  it.  If  the  Sen- 
ate be  not  in  session  when  the  nomination  is  made,  the 
nominee  takes  office  at  once  and  holds  what  is  termed  a 
"recess  appointment"  until  the  Senate  has  had  the  oppor- 
tunity to  take  action. 

The  Senate  has  an  undoubted  right  to  refuse  assent 
to  any  nomination  which  the  President  may  send.  But 
in  practice  it  allows  the  President  to  name  the  members  of 
his  own  Cabinet,  confirming  these  nominations  as  a  matter 
of  course.  It  has  taken  the  proper  ground  that  if  the 
President  is  to  be  held  responsible  for  the  acts  of  those  whom 


PRESIDENTIAL  POWERS  AND  FUNCTIONS          107 

he  selects  to  be  members  of  his  Cabinet,  he  should  be  given 
a  free  hand  in  choosing  them.  In  all  other  cases,  however, 
the  Senate's  power  is  one  to  be  reckoned  with.  It  has 
refused  its  assent  to  appointments  in  a  great  many  cases. 
As  a  rule  it  does  not  withhold  its  consent  except  for  some 
good  reason,  but  much  depends  upon  whether  the  President 
and  a  majority  of  the  senators  are  of  the  same  political 
faith  and  are  working  in  harmony.  To  confirm  a  nomina- 
tion sent  to  it  by  the  President  a  bare  majority  of  the 
senators  present  is  required.  It  does  not  take  a  two-thirds 
vote  as  in  the  case  of  confirming  treaties. 

While  the  words  "advice  and  consent "  might  seem  to  The  rule  of 
indicate  that  the  Senate  was  to  have  advisory  as  well  as  con- 
firming  functions,  it  was  not  the  intention  of  those  who  pro- 
vided the  plan  of  senatorial  confirmation  that  the  constitu- 
tion should  give  the  senators  any  actual  initiative  in  the 
making  of  appointments.  Nor  has  the  Senate  openly  laid 
claim  to  such  right.  In  due  course  there  developed, 
however,  the  unwritten  rule  known  as  the  "  qm,irtftsy-  of 
the  Senate. "  Stated  briefly,  this  was  the  practice  of  re- 
fusing to  confirm  the  nomination  of  any  local  officer,  such 
as  a  postmaster  or  collector  of  internal  revenue,  unless  the 
nominee  proved  satisfactory  to  the  senator  or  senators  from 
the  state  concerned,  provided  of  course  that  these  senators 
were  of  the  same  political  party  as  the  President  himself. 
Or,  to  put  it  more  concretely,  a  Republican  President  should 
not  nominate  any  one  as  postmaster  at  Philadelphia  with- 
out first  consulting  the  Republican  senators  from  that  state. 
If  he  did  so,  the  other  senators,  out  of  courtesy  to  their  Penn- 
sylvania colleagues,  were  under  obligation  to  refuse  confirma- 
tion. Senatorial  courtesy  has  had  its  ups  and  downs ;  it 
has  been  strong  enough  at  times  to  tie  the  President's  hands 
considerably ;  on  the  other  hand,  some  Presidents  have  been 
able  to  disregard  it  with  impunity.  From  the  nature  of 
things,  however,  a  President  usually  finds  that  he  can 
avoid  endless  trouble  and  can  get  much-needed  support 
for  more  important  things  by  consulting  the  two  senators 
from  the  state  concerned,  if  they  be  of  his  own  political 
party.1 

1  See  also  below,  p.  164. 


108      THE  GOVERNMENT  OF  THE  UNITED  STATES 

In  the  case  of  the  "inferior"  offices,  such  as  postmasters 
in  small  communities,  or  clerkships,  or  the  host  of  subordinate 
<  positions  in  the  various  departments,  the  whole  list  running 
up  to  several  hundred  thousand  minor  offices,  the  power 
of  appointment  is  vested  by  law,  for  the  most  part,  in  the 
President  alone.  Some  of  these  are  still  treated  as  "patron- 
age" and  are  filled  at  the  suggestion  of  senators  or  repre- 
sentatives from  the  districts  concerned ;  but  by  far  the 
greater  portion  of  them  are  now  dealt  with  in  accordance 
with  the  civil  service  regulations.1 

The  civil  The  beginnings  of  the  civil  service  system  go  back  to 

system.  1883  when  the  United  States  Civil  Service  Commission  was 
established  and  given  authority  to  hold  examinations  when- 
ever there  were  positions  in  the  classified  service  to  be  filled. 
Although  at  first  rather  limited,  the  scope  of  the  classified 
service  has  been  gradually  extended  until  to-day  it  includes 
nearly  all  the  subordinate  administrative  positions.  They 
number  nearly  a  quarter  of  a  million,  including  almost  all 
the  clerks  and  other  civilian  departmental  employees  in 
Washington,  the  postmasters  in  all  but  the  largest  cities, 
the  letter  carriers,  mail  clerks  on  trains,  employees  in  custom- 
houses, in  the  revenue  service  and  in  practically  all  the 
other  governmental  activities  except,  of  course,  the  army, 
the  navy,  and  the  courts.  The  Civil  Service  Commission 
itself  is  made  up  of  three  members  appointed  by  the  Presi- 
dent with  the  confirmation  of  the  Senate.  This  body  has 
general  supervision  of  the  competitive  examinations,  in- 
cluding the  selection  of  the  examiners.  As  to  the  practical 
workings  of  the  civil  service  system,  whether  in  national, 
state,  or  local  government,  more  will  be  said  later.  The 
merit  system  has,  at  any  rate,  greatly  improved  the  efficiency 
and  the  whole  temper  of  the  public  service. 

(&)  re-  The  constitution  says  nothing  about  the  power  of  removal, 

but  at  the  first  session  of  Congress  in  1789  the  question 
was  debated  and  settled  by  a  tacit  agreement  that  the 
President  should  have  power  to  remove  without  securing 
the  consent  of  the  Senate.  On  one  or  two  subsequent  occa- 

1  Many  further  details  concerning  the  methods  of  appointment  are 
given  in  the  essay  on  "The  Appointing  Power  of  the  President"  by  Lucy 
M.  Salmon,  in  the  American  Historical  Association's  Papers  (1886). 


PRESIDENTIAL  POWERS  AND  FUNCTIONS          109 

sions  Congress  undertook  to  restrict  the  President's  freedom 
in  making  removals,  but  without  much  success.1 

The  President,  accordingly,  can  now  remove  all  appointive 
civil  officials  at  his  discretion.     But  upon  this  power  there 
are  two  limitations :    first,  it  does  not  include  judges,  who  Limitations 
can  be  removed  by  impeachment  only ;    and  second,  those  po^of 
who  secure  appointment  under  the  civil  service  system  may  removal, 
not  be  removed  "except  for  such  causes  as  will  promote 
the  efficiency  of  the  service."     This  latter  limitation  is  not 
necessarily  a  serious  obstacle  to  a  President  who  desires 
to  make  removals  on  political  grounds,  but  in  practice  its 
spirit  has  been  tolerably  well  respected. 

Taken  in  all  its  bearings,  the  appointing  power  of  the  Importance 
President  is  ol  great  extent.  No  head  of  any  other  nation  ^pointing 
has  powers  approaching  it.  Many  have  equal  or  greater  power, 
appointing  powers  in  theory,  it  is  true ;  but  the  personal 
desires  of  the  American  President  have  more  actual  weight 
in  a  larger  number  of  cases  than  do  those  of  prime  ministers, 
chancellors,  or  monarchs.  Of  all  the  presidential  powers,] 
moreover,  it  is  the  most  disagreeable  in  its  exercise,  the  one 
that  makes  most  demand  upon  the  President's  time,  and 
the  one  that  may  be  most  easily  used  for  wrongful  purposes. 
The  framers  of  the  constitution  had  no  suspicion  that  this 
would  be  the  case,  nor  did  it  become  so  for  more  than  forty 
years  after  the  federal  government  was  established.  But 
when  Andrew  Jackson  became  President  in  1829,  he  at  once 
promulgated  the  famous  doctrine  that  "to  the  victors  belong 
the  spoils"  and  followed  it  up  by  wholesale  removals  from 
office.  Thus  was  inaugurated  the  spoils  system  and  the 
vice  of  political  patronage.  From  Jackson  to  Cleveland 

1  Notably  in  1867  when  Congress  passed  the  "Tenure  of  Office  Act" 
with  the  plain  purpose  of  preventing  President  Andrew  Johnson  from 
removing  various  officers.  It  provided  that  any  person  holding  a  civil 
office  to  which  he  had  been  appointed  with  the  confirmation  of  the  Senate 
should  hold  such  office  until  a  successor  was  in  like  manner  appointed; 
that  during  a  recess  of  the  Senate  the  President  might  suspend  but  not 
remove,  the  Senate  having  authority  to  concur  or  not  to  concur  when  it 
resumed  its  session.  The  Act  was  vetoed  by  the  President  and  passed 
over  his  veto.  President  Johnson  disregarded  it  as  unconstitutional,  and 
this  action  was  one  of  the  grounds  upon  which  he  was  impeached.  The 
Act  was  partly  repealed  in  1869,  and  practically  altogether  repealed  in  1887. 
It  is  now  generally  conceded  to  have  been  an  unconstitutional  enactment. 


110      THE  GOVERNMENT  OF  THE  UNITED  STATES 

every  President  was  forced  to  give  a  large  part  of  his  atten- 
tion to  the  pressure  for  partisan  removals  and  appointments.1 
Not  until  Cleveland  enunciated  the  far  more  wholesome 
doctrine  that  "  public  office  is  a  public  trust/7  and  laid 
thereon  the  foundations  of  the  civil  service  system,  did  the 
burden  of  importunities  appreciably  diminish.  Even  yet 
the  President  finds  the  demands  of  patronage  to  be  consider- 
able, for  the  more  lucrative  offices  are  still  within  his  dis- 
cretion to  bestow.  For  these  he  is  pressed  from  all  sides 
by  office-seekers  and  their  friends ;  he  is  held  responsible 
for  appointments  which  of  necessity  he  must  make  with- 
out accurate  personal  knowledge,  and  there  is  the  ever 
present  temptation  to  use  the  appointing  power  in  such  a 
way  as  to  insure  his  own  renomination  or  to  promote  the 
interests  of  his  own  party.  On  the  whole,  however,  this 
temptation  has  been  well  resisted.  A  strong-willed  Presi- 
dent, if  he  chose  to  use  without  scruple  his  powers  of  appoint- 
ment and  removal,  could  in  four  years  build  up  a  personal 
and  political  machine  of  almost  irresistible  strength ;  for 
with  the  enormous  growth  in  the  functions  of  national 
government  the  appointing  power  has  extended  over  a  far 
wider  range  than  could  ever  have  been  foreseen  when  the 
foundations  of  the  Republic  were  laid. 

(c)  the  Another  power,   sometimes  spoken  of  as  quasi-judicial, 

pardon^  but  rea%  executive  both  in  its  origin  and  in  its  nature,  is 
the  power  to  "grant  reprieves  and  pardons."  The  Presi- 
dent may  pardon  any  offence  against  the  federal  laws,  but 
he  has,  of  course,  no  authority  to  grant  pardons  for  offences 
against  the  laws  of. any  state.  The  pardon  may  be  either 
partial  or  complete.  One  limitation  is  imposed  upon  the 
President  by  the  constitution,  however,  in  that  he  can  grant 
no  pardon  to  any  one  convicted  by  the  process  of  impeach- 
ment. This  embodies  a  lesson  which  the  framers  of  the 
constitution  drew  from  the  Stuart  period  of  English  history 
when  the  monarch,  on  more  than  one  occasion,  relieved 
his  advisers  in  this  way  from  penalties  imposed  by  parlia- 
ment. 

Another   group    of   executive   powers    are   those   which 

1  For  a  full  account  of  this  development,  see  Carl  Russell  Fish,  The  Civil 
Service  and  the  Patronage  (N.  Y.,  1905). 


PRESIDENTIAL  POWERS  AND  FUNCTIONS          111 

relate  to  diplomacy,  treaties,  and  the  general  handling  of  2.  Powers 
foreign  affairs.  American  ambassadors  and  ministers  to 
foreign  countries  are  appointed  by  the  President  (with  the 
consent  of  the  Senate),  and  their  instructions  in  all  impor- 
tant matters  are  given  by  him  through  the  Secretary  of 
State.  Ambassadors  who  come  to  Washington  from  foreign 
lands  are  accredited  to  the  President.  What  the  general 
course  of  foreign  relations  will  be  rests  to  a  large  extent  in  the 
President's  hands.1  In  all  important  negotiations  he  as- 
sumes personal  supervision  of  the  communications  sent  to 
foreign  governments,  even  to  the  extent  of  frequently 
preparing  them  himself.  The  initiative  in  foreign  affairs, 
which  the  President  possesses  without  any  restriction,  is 
a  very  great  power  and  at  times  amounts  to  the  absolute 
control  of  such  matters. 

But  there  are  limitations  upon  the  President's  powers  Limitations 
in  relation  to  foreign  policy.  He  can  authorize  the  making 
of  a  treaty  with  any  foreign  state,  but  no  treaty  can  go  into 
effect  until  it  has  been  ratified  by  a  two-thirds  vote  of  the 
Senate.  He  can  break  off  diplomatic  intercourse  with 
any  other  nation,  and  may  take  various  other  steps  which 
are  tantamount  to  a  declaration  of  war ;  but  a  formal  decla- 
ration of  war  can  be  made  only  by  Congress.  In  practice 
the  President  does  not  usually  venture  to  direct  the  foreign 
relations  of  the  United  States  without  relying  on  the  advice 
of  others.  He  depends  for  guidance  to  some  extent  upon  his 
Cabinet,  to  some  extent  upon  the  leaders  of  his  own  party 
in  both  Houses  of  Congress,  and  he  is  always  subject  to 
the  pressure  of  public  opinion.  In  speaking  of  this  matter 
one  must  always  afford  considerable  scope  for  the  inter- 
play of  men  and  circumstances.  Some  Presidents  have 
made  the  handling  of  foreign  affairs  their  special  hobby, 
leaving  but  little  to  the  discretion  of  the  State  Department 
and  rarely  deigning  to  consult  the  congressional  leaders; 
others  have  shown  far  less  inclination  to  deal  personally 
with  diplomatic  negotiations.  When  matters  of  great  im- 
portance are  in  controversy,  however,  the  nation  expects 
the  President  to  take  the  reins  of  foreign  policy  into  his  own 

1  Edward   S.    Corwin,    The   President's   Control   of  Foreign   Relations 
(Princeton,  1917). 


112      THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.  Powers 
in  relation 
to  legisla- 
tion. 


Restrictions 
upon  the 
power  to 
call,  ad- 
journ, or 
dissolve 
Congress. 


The 
President's 


hands.  But  under  no  circumstances  may  the  President 
finally  commit  the  nation  to  an  alliance  or  to  any  other 
obligation  based  upon  a  treaty.  This  power  he  must  share 
with  the  Senate.1  The  framers  of  the  constitution  realized 
the  dangers  which  might  arise  from  clandestine  alliances 
and  secret  diplomacy.  They  were  determined  that  there 
should  be  no  place  for  these  things  in  the  New  World.  On 
the  whole  they  took  a  wise  precaution.  At  times  the  Sen- 
ate, by  withholding  its  assent,  has  prevented  the  conclusion 
of  arbitration  treaties  and  other  agreements  which  would 
probably  have  benefited  the  nation,  but  on  the  other  hand 
its  insistence  upon  a  full  and  frank  discussion  of  every 
proposed  international  compact  has  saved  the  United  States 
from  being  drawn  into  that  maelstrom  of  duplicity  and 
intrigue  which  has  so  long  and  so  steadily  cursed  the  diplo- 
macy of  Europe. 

One  might  judge  from  the  reverence  with  which  the 
statesmen  of  1787  regarded  Montesquieu's  doctrine  of 
checks  and  balances  that  the  President  would  have  been 
given  no  share  in  national  legislation.  But  he  was,  in  fact, 
endowed  with  some  powers  in  relation  to  the  making  of 
the  national  laws,  and  by  usage  these  powers  have  been 
greatly  expanded.  By  the  terms  of  the  constitution  he 
was  intrusted  with  certain  advisory  or  initiatory  functions, 
on  the  one  hand,  and  with  the  power  of  restricting  legisla- 
tion or  the  veto  power,  on  the  other. 

Unlike  the  chief  executive  in  most  European  states,  the 
President  does  not  call  the  national  legislature  together 
except  in  special  session.  The  time  for  the  beginning  of 
regular  sessions  of  Congress  is  fixed  by  law.  Nor  does  he 
adj  ourn  Congress  unless  the  two  Houses  fail  to  agree  between 
themselves  as  to  the  time  of  adjournment.  The  power  of 
dissolution,  so  important  in  England,  does  not  exist  in  the 
United  States.  Congress  finishes  out  its  two-year  term, 
no  more,  no  less.  It  cannot  be  dissolved  by  executive 
action. 

The  constitution,  again,  requires  the  President  to  "give 
to  the  Congress  from  time  to  time  information  on  the 
state  of  the  Union,  and  recommend  to  their  consideration 
1  See  below,  pp.  164-167.  j  ' 


PRESIDENTIAL  POWERS  AND  FUNCTIONS          113 

such  measures  as  he  shall  judge  necessary  and  expedient." 
This  is  the  basis  of  the  President's  right  to  send  messages 
to  Congress,  a  right  which  has  been  freely  used  from  the 
outset.  Washington  and  Adams  delivered  their  recom- 
mendations by  addressing  Congress  in  person ;  but  Jeffer- 
son began  the  practice  of  sending  written  messages  to  be  read 
in  both  Houses  by  the  clerks,  and  this  plan  was  consistently 
followed  until  1913,  when  President  Wilson  reverted  to  the 
earlier  method.  But  whether  read  or  sent  in  writing,  the 
messages  may  come  at  any  time  and  may  deal  with  any 
subject.  Usually  there  is  a  long  message  prepared  for  the 
beginning  of  each  congressional  session  ;  then  there  are  special 
messages  dealing  with  particular  subjects  and  sent  as  often 
as  the  President  may  see  fit. 

But  while  the  President  may  recommend  many  things,  HOW  far 
some  of  them  with  great  earnestness,  it  does  not  follow  that  p°odu«5 
Congress  must  act  upon  these  recommendations.  A  Presi-  results? 
dent's  annual  message  is  not,  like  the  speech  from  the 
throne  in  England,  an  outline  of  what  will  almost  surely 
come  to  pass  before  the  session  ends.  What  the  speech 
from  the  throne  recommends  is  almost  certain  to  be  fol- 
lowed by  parliament  because  the  men  who  really  frame 
these  recommendations,  namely,  the  prime  minister  and  his 
colleagues,  have  a  majority  in  parliament  ready  to  do  their 
bidding.  The  President,  on  the  contrary,  may  have  no 
such  congressional  majority  in  sympathy  with  him.  The 
other  political  party  may  control  a  majority  in  either  or 
both  Houses  of  Congress.  That  has  frequently  been  the 
case.  Or  even  if  his  own  party  does  control  both  Houses, 
the  President  has  no  assurance  that  the  senators  and  repre- 
sentatives will  do  what  he  advises.  The  result  is  that 
projects  of  legislation,  however  urgently  recommended  to 
Congress  by  the  President,  often  fail  to  receive  acceptance. 

On  the  other  hand,  presidential  recommendations  always  Their 
carry  weight,  and  there  are  many  occasions  upon  which  ^j^f 
they  move  Congress  to  action.     When  the  President's  own  lation. 
political  party  is  in  control  of  Congress  ;  when  he  has  taken 
counsel  with  the  party  leaders  and  obtained  their  support 
-  in  such  cases  he  can  make  recommendations  with  reason- 
able ground  for  expecting  that  they  will  be  followed.     He 


114      THE  GOVERNMENT  OF  THE  UNITED  STATES 

may  even  go  so  far  as  to  have  bills  prepared  and  presented 
by  some  senator  or  representative,  he  may  send  for  influ- 
ential members  of  Congress  and  solicit  their  assistance, 
and  in  many  other  ways  he  may  exert  great  influence  from 
behind  the  scenes  in  getting  these  bills  enacted.  In  no  field 
of  actual  government  does  more  depend  upon  the  President's 
political  and  personal  relation  to  Congress  than  in  this. 
Here,  more  than  anywhere  else,  the  function  is  the  measure 
of  the  man.  Andrew  Johnson,  opposed  and  disliked  by 
a  majority  in  both  Houses,  found  his  advice  rebuffed  and 
all  manner  of  unfriendly  legislation  sent  to  him  for  his 
signature.  Woodrow  Wilson,  on  the  other  hand,  has  given 
in  our  own  day  an  extraordinary  example  of  the  way  in 
which  a  President,  when  favorably  placed  in  relation  to 
Congress  and  when  possessed  of  the  requisite  personal 
qualities,  can  make  himself  a  parliamentary  leader.  The 
constitution,  as  Mr.  Wilson  once  declared  in  the  days 
before  he  became  the  nation's  chief  executive,  does  not 
forbid  a  President  to  back  up  his  messages,  as  General 
Washington  did,  with  such  personal  force  and  influence  as 
he  may  possess.  The  constitution,  indeed,  failed  to  provide 
for  Congress  any  definite  leadership.  Yet  leadership  of 
some  sort  there  must  be  if  work  of  legislation  is  to  be  carried 
through  effectively.  Hence  the  President  is  warranted  in 
assuming  the  role  of  a  prime  minister  so  far  as  the  consti- 
tution will  permit  him  to  do  so.  The  people  look  to  the 
President  rather  than  to  Congress  for  the  redemption  of 
pledges  made  in  the  platform  of  a  victorious  party.  He  must, 
therefore,  be  active  in  promoting  legislation  or  he  will  be 
forced  to  bear  the  onus,  under  the  party  system,  of  failing 
to  fulfil  his  preelection  promises.  This  is  an  outgrowth 
of  the  President's  status  as  a  party  leader,  a  matter  to  be 
discussed  presently. 

Another  Within  the  last  few  decades  there  has  grown  up  in  the 

the^Presi-  United  States,  moreover,  the  practice  of  determining  many 
dent's  legis-  matters  by  means  of  "executive  orders,"  issued  by  the 
powers:  President  and  having  virtually  the  force  of  law.  These 
the  system  orders  may  almost  be  regarded  as  constituting  what  is 
"executive  known  in  France  as  ordinances,  although  the  theory  on 
ordere."  which  the  ordinance  power  rests  in  the  French  Republic 


PRESIDENTIAL  POWERS  AND  FUNCTIONS          115 

is  commonly  thought  to  be  foreign  to  the  entire  spirit  of 
American  institutions.  In  France  it  is  customary  to  have 
parliament  enact  the  laws  in  general  terms,  leaving  the 
executive  branch  of  the  government  to  make  all  the  necessary 
detailed  provisions  by  ordinance.  In  the  United  States 
the  laws  are  avowedly  framed  to  cover  all  contingencies 
and  to  leave  no  considerable  discretionary  margin  to  the 
executive,  yet  executive  orders  are  frequently  issued  pre- 
scribing various  regulations  concerning  the  postal  and 
immigration  service,  the  collection  of  internal  revenue, 
the  civil  service  system,  the  patent,  pension,  and  land  offices, 
and  many  other  branches  of  public  administration.  In 
purport  these  "orders"  do  not  make,  amend,  or  repeal  or 
even  supplement  any  law ;  they  merely  explain  and  apply 
the  provisions  of  laws  made  by  Congress.  In  effect,  how- 
ever, they  do  far  more  than  that :  they  actually  modify 
the  strict  application  of  legal  provisions  with  a  great  deal 
of  freedom.  For  that  reason  they  may  be  looked  upon  as 
embodying  a  form  of  executive  legislation,  strange  as 
that  term  may  sound  to  American  ears,  for  while  these  or- 
ders are  to  some  extent  the  result  of  discretionary  authority 
conferred  by  general  laws,  they  are  in  even  larger  measure 
issued  without  any  such  warrant ;  in  other  words,  they  are 
the  manifestations  of  inherent  executive  power.  This 
development,  as  will  appear  more  clearly  in  connection 
with  the  work  of  the  executive  departments,  is  a  tacit  ad- 
mission that  under  the  complex  economic  and  social  condi- 
tions of  to-day  a  government  cannot  well  remain  strictly  a 
" government  of  laws"  in  the  narrow  sense.  The  inflexi- 
bility of  law  must  in  some  way  be  made  capable  of  relaxa- 
tion. 

More  important,  however,  than  the  function  of  recom-  Thereto 
mending  legislation  to  Congress  or  of  prescribing  rules  by  P°wer- 
executive  order,  is  that  of  vetoing  any  measure  which  does 
not  meet  the  President's  approval.     The  scope  and  nature 
of  this  power  cannot  be  more  succinctly  expressed  than  by 
quoting  the  exact  words  of  the  constitution  on  the  point : 

"Every  bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate  shall,  before  it  becomes  a  law,  b^ 
presented  to  the  President  of  the  United  States;  if  he 


116      THE  GOVERNMENT  OF  THE  UNITED  STATES 

approve  he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his 
objections,  to  that  House  in  which  it  shall  have  originated, 
who  shall  enter  the  objections  at  large  on  their  journal, 
and  proceed  to  reconsider  it.  If  after  such  reconsideration, 
two-thirds  of  that  House  shall  agree  to  pass  the  bill,  it  shall 
be  sent,  together  with  the  objections,  to  the  other  House, 
by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two-thirds  of  that  House,  it  shall  become  a  law.  But 
in  all  such  cases  the  votes  of  both  Houses  shall  be  determined 
by  yeas  and  nays,  and  the  names  of  the  persons  voting  for 
and  against  the  bill  shall  be  entered  on  the  journal  of  each 
House  respectively.  If  any  bill  shall  not  be  returned  by 
the  President  within  ten  days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him,  the  same  shall  be  a  law, 
in  like  manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  adjournment  prevent  its  return,  in  which  case  it 
shall  not  be  a  law." 

The  quaii-         On  the  question  of  the  President's  relation  to  lawmaking 
fied  veto       -fa^  framers  of  the  constitution  tried  to  steer  carefully  be- 

is  a  corn-  .^ 

promise.  tween  two  extremes.  They  were  not  prepared  to  give  the 
President  an  absolute  veto  such  as  had  been  possessed 
by  the  governor  in  every  one  of  the  thirteen  colonies  or  by 
the  king  in  relation  to  colonial  laws.  They  were  mindful 
of  the  indictment  of  George  III  in  the  Declaration  of  Inde- 
pendence for  having  "refused  his  assent  to  laws  the  most 
wholesome  and  necessary  for  the  public  good."  It  was  not 
their  desire  to  give  any  like  weapon  of  despotism  to  the 
chief  magistrate  of  the  Republic,  although  Alexander 
Hamilton  argued  that  it  would  never  be  abused  in  the  fu- 
ture as  it  had  been  in  the  past.  On  the  other  hand,  they 
were  unwilling  that  laws  should  be  made  in  entire  disregard 
of  the  President's  rights  or  wishes.  Experience  with  parlia- 
ment in  colonial  days  had  shown  that  a  legislature  could 
be  quite  as  tyrannical  as  a  monarch,  that  it  could  usurp  the 
prerogatives  of  the  other  departments  of  government,  and 
that  legislatures  could  not  be  kept  within  their  own  sphere 
of  action  by  any  "mere  parchment  delineation  of  boun- 
daries." 2  The  executive  must,  therefore,  have  some  sort 
of  bludgeon  to  wield  in  its  own  defence.  The  qualified 
1  Article  i,  Section  7.  2  The  Federalist,  No.  73. 


PRESIDENTIAL  POWERS  AND  FUNCTIONS          117 

veto  was  devised  as  a  thrust-and-parry  arrangement,  estab- 
lishing what  Hamilton  was  ready  to  defend  as  "a  salutary 
check  upon  the  legislative  body"  and  at  the  same  time  a 
"shield  to  the  executive."  Apparently  the  veto  was  re- 
garded as  a  legislative  rather  than  as  an  executive  function, 
for  provision  was  made  for  it  in  that  part  of  the  constitu- 
tion which  relates  to  the  organization  and  powers  of  Con- 
gress.1 

Was  it  intended  that  the  veto  should  be  used  freely  or 
only  on  rare  occasions?  Washington,  Adams,  Jefferson, 
and  Madison,  the  Presidents  of  the  constitutional  group, 
used  it  with  great  restraint.  During  the  first  forty  years 
of  the  Republic,  only  nine  bills  were  vetoed,  an  average  of 
less  than  one  for  each  administration.  Andrew  Jackson, 
however,  set  a  new  record  in  this  as  in  several  other  things 
by  vetoing  nearly  as  many  as  all  his  predecessors  put  to- 
gether. This  was  because  Jackson  interpreted  the  veto 
power  in  a  way  quite  different  from  that  of  his  six  predeces- 
sors. Their  attitude  had  been  one  of  non-interference 
with  the  lawmaking  authority  of  Congress  except  where 
intervention  by  means  of  the  veto  power  was  necessary 
to  protect  the  executive  department  from  legislative  en- 
crqachment.  But  Jackson  took  a  more  aggressive  stand, 
using  the  veto  to  stay  the  hand  of  Congress  whenever  its 
action  seemed  to  run  counter  to  his  own  political  or  personal 
aims.  This  interpretation  was  bitterly  criticised  in  its 
day  as  revolutionary  and  a  usurpation,  but  with  the  lapse 
of  time  it  has  gained  general  acceptance.  From  Jackson's 
time  until  after  the  Civil  War,  however,  vetoes  did  not 
increase,  and  during  his  entire  term  of  office  Lincoln  nega- 
tived only  two  general  measures.  President  Johnson  dur- 
ing his  quarrel  with  Congress  swung  his  battle-axe  right 
and  left,  but  not  to  much  avail  because  Congress  regularly 
passed  its  measures  over  his  veto.  Since  1867  the  only 
President  to  use  the  veto  power  unsparingly  was  Grover 
Cleveland,  who  applied  it  to  a  large  number  of  private 

1  "It  has  been  suggested  by  some  that  the  veto  power  is  executive. 
I  do  not  quite  see  how.  .  .  .  The  character  of  the  veto  power  is  purely 
legislative."  —  W.  H.  TAPT,  Our  Chief  Magistrate  and  His  Powers  (N.  Y., 
1916),  p.  14. 


118      THE  GOVERNMENT  OF   THE   UNITED    STATES 

pension  bills,  but  all  of  the  Presidents  since  his  time  have 
employed  it  more  freely  than  it  was  used  in  the  first  quarter 
of  the  nineteenth  century.  They  have  not  confined  them- 
selves, moreover,  to  measures  which  by  any  stretch  of 
the  imagination  could  be  regarded  as  encroachments  upon 
their  own  constitutional  prerogatives,  but  have  assumed 
the  duty  of  vetoing  any  measure  that  seemed  to  be  unwise 
or  inexpedient.  What  was  intended,  therefore,  to  be  a  presi- 
dential weapon  of  self-defence  has  developed  into  an  imple- 
ment which  can  be  and  is  regularly  used  for  guiding  and 
directing  the  law-making  authority  of  the  nation.  As  now 
interpreted  the  veto  power  makes  the  executive  a  far  more 
active  factor  in  legislation  than  he  was  originally  intended 
to  be.1 

HOW  the  In  vetoing  a  measure  the  President  not  only  returns  it 

^exercised.  w^hout  his  signature,  but  he  must  also  send  to  Congress 
his  reasons  for  this  action,  although  such  reasons  need 
not  be  lengthy  or  definite.  Any  general  statement  will 
serve.  He  may  allege  the  bill  to  be  unconstitutional,  al- 
though it  has  sometimes  been  remonstrated  that  this  is  a 
matter  which  he  should  leave  to  be  settled  by  the  courts. 
He  may  allege  it  to  be  unwise,  untimely,  extravagant,  or 
may  register  any  other  objection  to  it.  As  a  rule,  a  presi- 
dential veto  is  decisive,  for  a  two-thirds  vote  to  overcome 
it  cannot  usually  be  had.  There  are  exceptions,  however, 
as  for  example  in  Andrew  Johnson's  time,  when  both  Houses 
of  Congress  by  large  majorities  were  opposed  to  the  President. 
The  A  word  should  be  added  in  explanation  of  what  is  called 

^e  "  Pocket  veto."  If  the  President  neither  signs  nor  vetoes 
a  bill,  it  becomes  a  law  upon  the  expiration  of  ten  days, 
unless  Congress  should  adjourn  in  the  meantime,  in  which 
case  the  bill  expires  without  becoming  a  law.  Now  there  is 
usually  a  great  congestion  of  bills  passing  through  their 
final  stages  in  Congress  near  the  close  of  a  session  and  many 
of  these  come  to  the  President  during  the  last  week  before 
adjournment.  Those  which  the  President  favors  he  may 
pick  out  and  sign ;  those  which  he  opposes  he  need  merely 

1  E.  C.  Mason,  The  Veto  Power  (Boston,  1890),  gives  a  full  account 
of  the  use  and  abuse  of  the  veto  power  during  the  first  century  of  its 
history. 


PRESIDENTIAL  POWERS  AND  FUNCTIONS  119 

ignore,  and  they  will  meet  their  fate  by  the  "pocket  veto." 
This  puts  much  less  personal  responsibility  on  the  Presi- 
dent than  the  process  of  vetoing  bills  in  the  ordinary  way, 
and  yet  is  just  as  effective.  On  the  other  hand,  if  a  Presi- 
dent neither  favors  nor  opposes  a  measure  which  comes 
to  him  in  good  season  before  the  adjournment  of  Congress, 
he  may  allow  it  to  become  a  law  without  his  signature, 
merely  by  inaction  during  the  ten  prescribed  days.  Some 
Presidents  have  taken  this  course  as  a  means  of  indicating 
their  indecisive  attitude  on  certain  measures,  a  notable 
example  being  the  Income  Tax  Law  of  1894,  which  became 
a  law  without  the  signature  of  President  Cleveland  and  was 
later  held  by  the  Supreme  Court  to  be  unconstitutional 
in  that  it  levied  a  direct  tax  without  apportionment  among 
the  states,  as  the  constitution  required. 

It  is  asked  whether  the  veto  power  has,  on  the  whole,  Merits  and 
served  a  good  purpose.  Lord  Bryce  believes  that  it  has,  defects  of 
and  most  students  of  the  subject  are  inclined  to  agree,  system. 
Apart  from  private  pension  bills  and  other  measures  of 
personal,  political,  or  sectional  favoritism,  the  vetoes  have 
not  averaged  one  per  year.  Ninety-nine  per  cent  of  all 
the  measures  passed  by  Congress  regularly  go  upon  the 
statute-book.  The  veto  power,  save  in  very  exceptional 
instances,  has  not  been  abused.  For  the  most  part  it  has 
been  exercised  prudently  and  with  good  reason.  Its  ruth- 
less use  by  Jackson  and  Tyler  led  to  an  agitation  for  its 
abolition  or  amendment,  and  Henry  Clay  in  1842  proposed 
that  a  mere  majority  instead  of  a  two-thirds  vote  should  be 
prescribed  as  sufficient  to  pass  any  measure  over  the  veto, 
but  the  plan  never  made  much  headway,  and  the  agitation 
soon  subsided.  There  is  at  present  no  serious  or  wide- 
spread feeling  that  the  veto  power  ought  to  be  taken  away 
or  made  less  effective,  and  on  the  whole  the  system  is  now 
regarded  as  one  of  the  excellences  of  the  American  political 
system,  yet  no  European  country  or  colony  has  seen  fit 
to  copy  it.  Other  federations,  particularly  Canada  and 
Australia,  have  borrowed  considerably  from  the  political 
institutions  and  experience  of  the  United  States,  but  the 
qualified  veto  is  not  among  the  things  to  which  they  have 
accorded  the  flattery  of  imitation. 


120      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Veto  power 
does  not 
extend  to 
items  in  a 
measure. 


Nor  to  con- 
stitutional 
amend- 
ments nor 
to  con- 
current 
resolutions. 


One  improvement  in  the  existing  veto  system  has  been 
strongly  urged,  namely,  that  the  President  be  allowed  to 
strike  out  single  items  in  an  appropriation  bill,  a  power 
which  he  does  not  now  possess.  At  present  he  must  either 
veto  the  bill  as  a  whole  or  not  veto  it  at  all.  In  conse- 
quence the  President  must  often  give  his  consent  to  items 
which  he  does  not  approve ;  otherwise  the  entire  bill  would 
fail.  This  is  particularly  true  of  appropriation  bills  which 
often  include  hundreds  of  items,  all  of  which,  save  a  very 
few,  may  be  entirely  proper  ones.  These  few  may  be  perni- 
cious and  wasteful,  yet  the  President  must  take  the  chaff 
with  the  wheat.  Many  wasteful  expenditures  have  gone 
past  the  most  vigilant  Presidents  in  this  way.  A  con- 
stitutional amendment  giving  the  President  power  to 
veto  some  items  while  accepting  others  might  serve  in 
some  ways  a  good  purpose;  on  the  other  hand  it  would 
enormously  increase  the  influence  of  the  President  in  legis- 
lation, giving  him  a  new  form  of  patronage  almost  equal 
to  that  which  he  now  has  through  the  exercise  of  his  appoint- 
ing power.  All  congressmen,  both  senators  and  represen- 
tatives, are  greatly  interested  in  securing  appropriations  for 
use  in  their  own  states  or  districts.  The  partial  veto,  in 
the  hands  of  a  partisan  or  vindictive  President,  could 
easily  be  used  to  penalize  those  who  oppose  him  and  to 
advance  the  interests  of  those  who  support  his  policies. 
The  remedy  might  readily  prove  worse  than  the  exist- 
ing evils.  With  a  proper  budget  system  in  operation, 
however,  the  danger  of  discrimination  would  not  be  so 
great.1 

Proposals  to  amend  the  constitution,  when  passed  by 
a  two-thirds  vote  of  Congress,  do  not  require  the  President's 
signature  and  hence  cannot  be  vetoed  by  him.  The  same 
is  true  of  the  "concurrent  resolutions"  which  both  Houses 
of  Congress  adopt  from  time  to  time  and  which  are  merely 
expressions  of  congressional  opinions,  not  having  the  force 
of  law.  "Joint  resolutions,"  however,  do  have  the  force 
of  law,  and  being  submitted  for  the  President's  signature, 

1  The  constitution  of  the  Confederate  States,  adopted  in  1861,  conferred 
upon  the  President  of  the  Southern  Confederacy  the  right  to  veto  individual 
items. 


PRESIDENTIAL  POWERS  AND  FUNCTIONS          121 

may  be  vetoed.     The  difference  between  a  bill  and  a  joint 
resolution  is  only  of  technical  importance. 

Surveying  as  a  whole  the  President's  powers  in  relation  Conclusions 
to  law-making,  it  will  be  seen  that  whatever  the  purpose  of  °(J1enIJ?sPl 
the  constitution  may  originally  have  been,  the  actual  influ-  powers  i 
ence  now  exerted  by  the  executive  in  matters  of  federal 
legislation  is  in  reality  very  extensive.  It  is  both  positive 
and  preventive.  The  President,  in  a  positive  sense,  recom- 
mends legislation  to  Congress  by  message,  follows  up  his 
recommendations  by  the  use  of  political  and  personal  pres- 
sure, and  may  use  his  patronage,  if  need  be,  to  make  his 
wishes  prevail.  In  a  preventive  sense,  on  the  other  hand, 
his  influence  is  exerted  by  the  exercise  of  his  veto  power. 
Save  in  rare  cases  no  law  goes  on  the  statute-book  against 
his  pronounced  objection.  Putting  the  two  forms  of  influ- 
ence together,  one  can  readily  grasp  the  far-reaching  nature 
of  his  legislative  influence. 

By  express  provision  of  the  constitution  the  President  4.  Military 
is  commander-in-chief  of  the  army  and  navy  of  the  United  * 
States,  and  this  includes  the  militia  forces  when  called  into 
the  federal  service.     He  appoints  all  the  regular  and  reserve 
officers  of  the  army  and  navy,  but  officers  of  the  militia, 
when  not  in  the  service  of  the  United  States,  are  appointed 
as  the  laws  of  their  several  states  may  direct.     Congressj 
votes  the  appropriations  for  the  military  and  naval  forces,  j 
but  the  expenditure  of  these  funds  is  in  the  hands  of  the  \ 
War  and  Navy  departments,  both  of  which  are  directly 
under  the  President's   control.     Congress   also  makes  the 
general  laws  under  which  the  military  and  naval  forces  are 
organized   and  maintained,  %  but  a  large  discretion  in  the 
making  of  detailed  regulations  is  left  with  the  President 
and  his  advisers,  particularly  in  time  of  war.     The  Presi- 
dent directs  the  location  and  movement  of  the  nation's 
armed  forces  and  by  the  exercise  of  this  authority  may  bring 
about  a  state  of  war,  leaving  Congress  no  option  but  to 
recognize  an  accomplished  fact  by  the  issue  of  a  formal 
declaration.     Under   his   war   powers    the   President   may 
provide  by  proclamation  for  the  government  of  conquered 
territory  until  Congress  provides  a  permanent  form  of  ad- 
ministration.    No   man   has    ever   accurately    defined   the 


122      THE  GOVERNMENT  OF  THE  UNITED  STATES 

powers  of  the  President  as  "  commander-in-chief , "  and  no 
court  has  ever  placed  any  fixed  limit  upon  them.  They 
expand  with  the  needs  of  the  situation  in  war  time  and 
potentially  are  as  great  as  any  ever  exercised  by  Oliver 
Cromwell  or  Napoleon  Bonaparte.  Lincoln,  in  his  day, 
demonstrated  that  the  war  powers  were  enormous,  and 
President  Wilson,  in  our  own  time,  is  showing  that  these 
powers  have  in  no  wise  diminished.  It  is  one  of  the  cardinal 
virtues  of  the  American  constitution,  despite  its  reputed 
inflexibility,  that  in  neither  of  two  great  military  emergencies 
has  it  prevented  the  "incisive  application  of  a  single  will." 
The  main-  In  the  matter  of  guaranteeing  to  each  of  the  states  a 
domestic*  republican  form  of  government,  protecting  them  from 
peace.  invasion,  and  putting  down  internal  disorders,  the  constitu- 
tion intrusts  powers  to  the  federal  government  which  the 
President  usually  exercises  on  its  behalf.  In  the  event  of 
an  invasion  or  of  any  attempt  to  supplant  the  republican 
form  of  government  the  intervention  may  take  place  with- 
out any  request  from  the  state  concerned.  But  in  the  case 
of  domestic  violence  the  federal  government  may  not  step 
in  unless  its  assistance  is  requested  by  the  authorities  of 
the  state  in  which  the  disorder  has  arisen.  This  request 
is  made  by  the  state  legislature  if  in  session ;  if  the  legisla- 
ture be  not  in  session,  it  is  made  by  the  governor.  When, 
however,  the  disorders  within  any  state  obstruct  any  func- 
tion of  the  federal  government,  such  as  the  collection  of 
import  duties  or  the  carrying  of  the  mails,  the  President 
may  intervene  without  waiting  for  any  invitation  from  the 
state  authorities.  President  Cleveland,  in  1894,  sent  federal 
troops  into  Illinois,  despite  the  opposition  of  the  authorities 
in  that  state,  to  secure  the  free  "passage  of  the  mails  and  of 
interstate  commerce  during  a  railway  strike.  The  Supreme 
Court  upheld  the  exercise  of  this  authority.1 

"The  entire  strength  of  the  nation  may  be  used  to  enforce  in  any  part 
of  the  land  the  full  and  free  exercise  of  all  national  powers  and  the  security 
of  all  rights  intrusted  by  the  constitution  to  its  care.  The  strong  arm  of 
the  national  government  may  be  put  forth  to  brush  away  all  obstructions 
to  the  freedom  of  interstate  commerce  or  the  transportation  of  the  mails. 
If  the  emergency  arises,  the  army  of  the  nation,  and  all  its  militia,  are  at 
the  services  of  the  nation  to  compel  obedience  to  its  laws."  In  re  Debst 
158  U.  S.  564. 


PRESIDENTIAL  POWERS  AND  FUNCTIONS          123 

All  the  foregoing  powers  are  vested  in  the  President  by  5.  Political 
the  constitution  and  the  laws  of  the  United  States  as  inter- 
preted  by  the  courts.  There  is  a  fifth  class  of  powers,  or 
to  speak  more  accurately  a  form  of  official  influence,  which 
the  President  does  not  obtain  from  this  source,  but  which 
he  possesses  by  virtue  of  his  position  as  leader-in-chief  of 
his  own  political  party.  The  President  is  a  partisan,  elected 
as  such.  The  National  Committee  of  his  party  is  so  or- 
ganized as  to  be  in  sympathy  with  him.  His  party  leaders 
in  Congress  must  work  in  reasonable  harmony  with  their 
chief,  otherwise  the  party  is  likely  to  go  down  to  defeat  at 
the  next  election  as  the  penalty  of  its  own  disunion.  The 
President,  therefore,  while  not  himself  possessed  of  a  seat 
in  Congress,  is  far  more  influential  there  than  any  member 
of  it,  and  usually  more  influential  than  any  score  of  members. 
The  country  has  often  had  party  bosses  in  its  cities  and 
occasionally  in  its  several  states,  but  never  yet  a  national 
party  boss.  That  position,  or  something  very  akin  to  it,  is 
at  times  assumed  by  the  President  himself.  As  the  consti- 
tution makes  no  provision  for  either  parties  or  bosses,  this 
attribute  of  the  national  executive  is  wholly  extra-consti- 
tutional and  the  outcome  of  usage. 

Yet  the  President's  functions  as  the  dominating  figure  The  Presi- 
in  the  councils  of  his  own  political  party  cannot  be  ignored.  Ration  to 
His  wishes  are  consulted  in  the  framing  of  the  party  plat-  his  party, 
form  because  it  is  highly  desirable  that  the  platform  and 
the  candidate  should  be  articulated.  If  he  is  interested  in 
any  important  legislative  or  administrative  project,  the 
party  platform  usually  embodies  his  programme  on  that 
point.  Just  as  the  constitution  enjoins  upon  the  President 
the  faithful  execution  of  the  laws,  so  the  unwritten  rules 
of  party  loyalty  enjoin  upon  him  the  earnest  endeavor  to 
carry  into  legal  effect,  either  by  his  own  authority  or  by 
pressing  action  upon  Congress,  whatever  promises  have 
been  incorporated  in  the  platform  of  his  party.  The  plat- 
form is  a  series  of  pledges,  or  is  intended  to  be.  Members 
of  the  party  in  both  Houses  of  Congress,  as  well  as  the 
President,  are  bound  by  it.  The  President  can  demand 
their  support  in  many  things,  therefore,  not  merely  as  the 
first  citizen  of  the  nation  but  as  the  commander-in-chief 


124      THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  his  party  cohorts.  His  appeal,  when  put  in  this  form,  is 
usually  influential,  for  legislators  on  the  whole  desire  to  be 
accounted  "  regular/'  and  there  are  ways  of  penalizing  them 
by  withholding  patronage  if  they  are  not.  It  happens  at 
times  that  even  in  his  capacity  as  party  leader  the  Presi- 
dent fails  to  move  his  co-partisans  in  Congress,  or,  on  the 
other  hand,  that  he  may  feel  constrained  to  veto  laws  which 
they  have  passed ;  but  that  is  not  the  usual  course  of  events. 
Between  his  authority  as  chief  executive  and  his  influence 
as  a  party  leader  it  is  a  weak  or  untactful  President  who 
cannot  obtain  from  Congress,  provided  his  party  controls 
a  majority  in  both  Houses,  the  chief  measures  which  he 
determines  to  secure.  Party  regularity  in  Congress  is 
far  from  being  as  strict  as  it  is  in  the  British  House  of  Com- 
mons, and  the  President's  wishes  are  by  no  means  so  im- 
plicitly respected  in  the  one  as  are  the  dictates  of  the  prime 
minister  in  the  other,  yet  the  difference  is  not  nearly  so 
great  as  the  disparity  in  the  framework  and  theory  of  the 
two  governments  would  imply.  The  unwritten  constitu- 
tion of  the  United  States  is  in  this  matter  to  be  reckoned 
with,  and  by  foreign  students  of  American  government  it 
is  too  often  overlooked.  "The  personal  force  of  the  Presi- 
dent," as  the  contemporary  incumbent  of  the  office  has 
expressed  it,  "is  perfectly  constitutional  to  any  extent  to 
which  he  chooses  to  exercise  it ;  and  it  is  by  the  clear  logic 
of  our  constitutional  practice  that  he  has  become  alike  the 
leader  of  his  party  and  the  leader  of  the  nation."  1 
ThePresi-  The  President  of  the  United  States,  during  his  term  of 
the  courts  on^ce;  *s  immune  from  control  by  the  courts.  There  is  only 
\  one  tribunal  before  which  he  can  be  called  to  answer  for  any 
offence  or  dereliction  of  duty,  and  that  is  the  Senate  of  the 
United  States  sitting  as  a  court  of  impeachment.  There 
&re  two  good  reasons  for  this  immunity.  One  is  that 
the  President,  as  commander-in-chief  of  the  armed  forces 
of  the  nation,  controls  the  ultimate  power  which  enforces 
any  judicial  decision.  Against  him  the  courts  would  be 
powerless  unless  he  chose  to  accept  their  decisions,  and  the 
Supreme  Court  long  ago  wisely  decided  that  it  would  not 

1  Woodrow  Wilson,    Constitutional   Government  in   the    United   States 
(N.  Y.,  1911),  pp.  71-72. 


PRESIDENTIAL  POWERS  AND  FUNCTIONS          125 

attempt  what  Chief  Justice  Marshall  termed  "an  absurd 
and  excessive  extravagance"  of  jurisdiction.  The  other 
reason  for  the  President's  immunity  from  ordinary  judicial 
process  is  to  be  found  in  his  unlimited  power  to  grant  par- 
dons save  upon  conviction  by  impeachment.  There  is  no 
disability  or  restraint  that  the  courts  might  impose  upon 
him  but  could  be  at  once  removed  by  one  stroke  of  his  own 
pardoning  power.  The  one  great  safeguard  which  the 
constitution  provides  against  the  abuse  of  presidential 
powers  or  presidential  malfeasance  of  any  sort  is  the  privilege 
of  impeachment. 


CHAPTER  IX 


The 


of  the 
Cabinet. 


THE   CABINET  AND   NATIONAL  ADMINISTRATION 

THE  practice  of  surrounding  the  chief  executive  with  a 
circle  of  advisers,  chosen  by  himself,  is  one  of  the  oldest 
in  the  history  of  government.  It  appeared  in  England 
under  thp  Anglo-Saxon  kings  and  became  fully  recognized 
as  an  integral  feature  in  the  government  of  the  realm  under 
the  Normans.  During  the  long  period  between  the  first 
of  the  Plantagenets  and  the  last  of  the  Stuarts  the  institution 
known  as  the  Privy  Council,  composed  of  the  royal  ministers 
or  advisers,  assumed  administrative  functions  of  compre- 
hensive importance  in  England,  and  it  was  from  this  body 
that  an  inner  circle,  henceforth  known  as  the  Cabinet, 
developed  under  the  Hanoverians  to  the  position  which  it 
occupies  at  the  present  day.  Originally  made  up  of  advisers 
selected  by  the  crown  and  not  accountable  to  parliament, 
the  English  Cabinet  has  become,  during  the  past  two  cen- 
turies, the  creature  of  the  majority  party  in  the  House  of 
Commons,  and  responsible  to  the  crown  in  legal  fiction  only. 
It  is  to-day  the  real  executive  organ  of  the  United  Kingdom, 
the  great  standing  committee  of  parliament. 

In  one  sense  the  English  and  American  Cabinets  are  alike. 
Neither  has  any  constitutional  foundation.  In  England 
i~n England  the  basis  upon  which  the  Cabinet  stands  is  usage  alone; 
in  the  United  States  the  constitution  contains  no  provision 
for  a  Cabinet  and  makes  only  incidental  references  to 
"heads  of  departments/'  from  whom  the  President  may  ask 
opinions  and  who  may  be  authorized  by  law  to  appoint 
their  own  subordinates.  Here,  too,  the  Cabinet  as  a  body 
rests  upon  usage.  But  aside  from  this  similarity  in  the 
mutual  lack  of  any  legal  basis  the  Cabinets  of  the  two  coun- 
tries are  unlike  in  every  important  respeet.  Without  the 

126 


Its  lack 
of  legal 
basis  both 


and  in  the 
United 

States. 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     127 

Cabinet  the  whole  scheme  of  English  government  would 
fail  to  function;  if  the  Cabinet  were  to  be  abolished,  the 
entire  frame  of  English  administration  would  have  to  be 
remodeled,  for  it  has  become  the  pivot  around  which  all 
else  now  revolves.  But  in  the  United  States  the  Cabinet, 
as  such,  plays  no  such  all-essential  part.  The  wheels  of 
federal  government  would  run  just  about  as  smoothly 
if  the  heads  of  departments  formed  no  organized  group 
and  if  no  Cabinet  meetings  were  held  from  one  end  of  the 
year  to  the  other.1 

The  builders  of  the  American  federal  system  were  indis-  The  framers 
tinctly  aware  of  the  important  role  which  the  Cabinet  had  of. the.  con~ 
assumed  in  the  practical  working  of  English  government  aid  not 
during  the   eighteenth   century,  and  they  were   also   well  regafd  a 
acquainted  with  the  work  of  the  executive  councils  which  essential, 
had  existed  in  some  of  the  colonies  before  the  Revolution. 
That  they  did  not  make  specific  provision  for  any  such 
body  in  the  constitution  of  1787  is  presumptive  evidence 
that  they  at  least  did  not  regard  it  as  a  necessity,  and  per- 
haps did  not  desire  any  body  of  the  sort.     They  realized,  But  made 
however,  that  the  President  could  not  alone  perform  all  proyision 

,...».,,       TT    .  m  the  con- 

the  administrative  functions  that  the  Union  would  require,  stitution 
and  indeed  the  experience  of  the  nation  under  the  Articles 
of  Confederation  had  shown  that  executive  officers,  each  ments. 
in  charge  of  a  department,  were  essential  to  the  proper 
despatch  of  business.     So  the  framers  of  the  constitution 
merely  assumed  that  the  President  would  have  subordinates 
in  charge  of  the  various  departments,  but  specified  neither 
what  these  departments  should  be,  nor  what  authority  they 
should  exercise.     They  did  not  even  indicate  in  the  consti- 
tution whether  these  departments  should  be   established 
by  the  President   or  by   Congress.     "The  President  .  . 
may  require  the  opinion  in  writing  of  the  principal  officer 
in  each  of  the  executive  departments.  .  .  . "     That  is  all 
the  constitution  has  to  say  about  the  President's  relation 

1  John  A.  Fairlie's  National  Administration  of  the  United  States  of 
America  (2d  ed.,  N.  Y.,  1914)  is  the  best  book  on  the  subject  of  cabinet 
organization  and  functions.  On  the  development  of  the  Cabinet,  its  per- 
sonnel at  various  periods,  and  its  relations  with  the  President,  see  H.  B. 
Learned,  The  President's  Cabinet  (New  Haven,  1912),  and  M.  L.  Hinsdale, 
History  of  the  President's  Cabinet  (N.  Y.,  1911). 


128      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Depart- 
ments 
which  have 
been  estab- 
lished by 
Congress. 


Status  of 
these  de- 
partment 
heads. 


How 
selected. 


to  his  chief  executive  advisers.  .  As  a  matter  of  fact;  how- 
ever, the  various  departments  one  after  another  have 
been  created  by  Congress.  Three  of  them,  indeed,  were 
established  at  its  first  session  in  1789.  These  were  the 
Department  of  State,  the  Department  of  the  Treasury,  and 
the  War  Department.  The  offices  of  the  Attorney-General 
and  Postmaster-General,  which  were  established  in  the 
same  year,  did  not  at  first  rank  as  regular  departments. 
They  became  departments,  however,  in  the  course  of  time, 
and  Congress  has  also  added  others :  the  Navy  in  1798, 
the  Interior  in  1849,  Agriculture  in  1889,  Commerce  in 
1903,  and  Labor  in  1913.  There  are  now,  accordingly,  ten 
administrative  departments  whose  heads  are  by  custom 
entitled  to  membership  in  the  Cabinet. 

The  head  of  each  department  (Secretary  of  State,  Attor- 
ney-General, Postmaster-General,  as  the  case  may  be)  is 
.appointed  by  the  President  with  the  consent  of  the  Senate. 
But  this  consent,  as  has  already  been  stated,  is  now  never 
withheld.  The  President  announces  his  selections  immedi- 
ately after  his  inauguration,  and  the  heads  of  departments, 
as  a  rule,  hold  their  posts  till  the  end  of  the  President's 
term,  although  they  may  be  removed  by  him  at  any  time. 
Removals  in  the  ordinary  sense  have  not  been  common, 
but  resignations  because  of  failure  to  work  in  entire  harmony 
with  the  President  have  been  numerous.  Only  in  rare 
cases  can  it  ever  become  necessary  for  the  President  to  dis- 
miss any  member  of  his  Cabinet.  A  hint  that  a  resignation 
would  be  acceptable  is  ordinarily  quite  enough.  Occa- 
sionally the  head  of  a  department  may  serve  through  the 
term  of  more  than  one  President,  particularly  if  the  succeed- 
ing President  be  of  the  same  political  party.  No  head  of  a 
department  may  sit  in  either  the  Senate  or  the  House  of 
Representatives;  in  this  respect  there  is  a  marked  contrast 
with  the  English  system,  which  requires  that  every  member 
of  the  Cabinet  shall  have  a  seat  in  parliament.  Nor  has 
any  member  of  the  American  Cabinet  the  right  to  be  heard 
in  either  House  of  Congress,  although  he  may  and  frequently 
does  confer  with  congressional  committees. 

In  selecting  the  ten  heads  of  departments  who  form  his 
Cabinet  the  President  is  not  limited  by  the  constitution 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     129 

or  laws  as  to  the  range  of  his  choice.  He  may  select  whom 
he  pleases.  But  there  are  practical  considerations  which 
to  some  extent  direct  his  actions.  As  a  rule  all  are  chosen 
from  his  own  political  party.  Washington  endeavored  to 
select  his  Cabinet  from  among  the  men  of  different  political 
inclinations,  but  the  result  proved  embarrassing  and  the 
precedent  has  not  been  followed  save  in  very  exceptional 
cases.  The  selections  are  made,  moreover,  with  an  eye  to 
giving  general  representation  to  all  sections  of  the  country. 
A  President  does  not  take  all  his  Cabinet  secretaries  from 
the  North  or  the  South,  or  from  the  East  or  the  West.  Re- 
gard is  also  paid  to  the  desirability  of  representing  different 
factions  in  the  party,  if  such  there  be,  and  some  of  those 
who  have  been  the  President's  right-hand  men  during  the 
campaign  for  his  nomination  and  election  are  sure  to  expect, 
and  usually  receive,  recognition.  Frequently,  in  past 
years,  the  President's  strongest  competitor  for  the  party 
nomination  has  been  taken  inside  the  breastworks  after 
the  battle  and  made  Secretary  of  State.  Now  and  then 
the  selection  is  made  solely  because  the  appointee  is  pecul- 
iarly well  fitted  by  administrative  experience  to  be  placed 
at  the  head  of  some  department ;  but  in  the  main  the  choice 
is  determined  by  personal  or  political  reasons. 

In  discussing  the  powers  and  functions  of  the  Cabinet  Powers  and 
it  is  advisable  to  make  a  distinction  between  those  functions  ^J^011* 
which  are  performed  by  the  Cabinet  as  a  whole,  and  those  heads  of 
which  are  exercised  by  the  members  of  the  Cabinet  indi-  ^^~ 
vidually,  as  heads  of  their  own  departments. 

It  has  already  been  stated  that  the  Cabinet,  as  a  body,  i.  as  a 
has  no  constitutional  or  statutory  powers.  There  is  noth-  body< 
ing  which  can  be  done  with  its  consent  which  could  not 
be  done  without  its  approval  if  the  President  should  so 
decide.  It  is  merely  a  group  of  high  officials  whom  the 
President  may  or  may  not  call  together  for  consultation 
as  he  chooses.  Yet  its  members  meet  in  council  once  or 
twice  each  week  and  seem  to  find  plenty  to  do  at  these 
meetings.  What  is  there  to  do?  Briefly  the  Cabinet 
discusses  whatever  the  President  may  see  fit  to  lay  before 
it  and  gives  its  advice  to  him  when  he  asks  for  it.  Some- 
times the  President  has  already  made  up  his  mind  and 


130      THE  GOVERNMENT  OF  THE  UNITED  STATES 

merely  brings  a  matter  before  the  Cabinet  for  suggestions 
as  to  details.  Lincoln,  for  instance,  did  not  consult  his 
Cabinet  on  the  Emancipation  Proclamation  until  he  had 
himself  fully  decided  that  it  ought  to  be  issued.  In  general, 
however,  the  President  submits  a  great  many  matters  to  his 
Cabinet  for  discussion  before  a  decision  is  reached.  He  is 
not  bound  to  follow  the  Cabinet's  advice,  and  in  practice 
questions  are  rarely  put  to  a  vote,  but  from  the  nature  of 
things  the  discussion  which  takes  place  at  Cabinet  meetings 
is  likely  to  influence  the  President's  attitude.  This  is 
because  it  is  a  discussion  participated  in  by  ten  men,  all 
of  whom  the  President  has  himself  chosen  as  sound  and 
sensible  advisers.1  Yet  every  President  realizes,  or  ought 
to  realize,  that  the  Cabinet  has  no  collective  responsibility 
and  that  the  onus  of  every  executive  action  must  rest  upon 
the  shoulders  of  the  President  alone. 

Meetings  of  the  Cabinet  are  secret,  and  no  formal  record 
of  the  discussions  is  ever  kept  or  given  to  the  public. 
Whether  the  President  asks,  receives,  accepts,  or  disregards 
advice  from  his  Cabinet  is  never  known,  save  in  rare  in- 
stances, and  then  long  after  the  event  has  passed.  Out- 
wardly the  Cabinet,  as  in  England,  must  display  the  appear- 
ance of  solidarity.  If  there  are  important  differences  of 
opinion,  they  must  be  composed  within  the  Cabinet  itself  by 
the  President's  friendly  intermediation.  No  head  of  a  de- 
partment can  openly  criticise  either  the  President  or  his  own 
colleagues  and  remain  a  member  of  the  Cabinet.  In  esti- 
mating the  influence  of  the  Cabinet  a  great  deal  depends,  of 
course,  upon  the  temperament  of  the  President  himself, 
whether  pliant  or  strong-willed,  and  much  will  also  hinge 
upon  the  personality  of  the  men  who  make  up  the  Cabinet. 
The  best  service  performed  by  the  frequent  Cabinet  meet- 
ings, however,  is  that  of  avoiding  conflicts  or  misunder- 

1  There  has  been  a  world  of  difference  among  Presidents  in  this  respect. 
Four  or  five  members  of  his  Cabinet  virtually  controlled  President  Bu- 
chanan during  the  latter  part  of  his  term,  and  Franklin  Pierce  was  com- 
monly spoken  of  during  his  administration  as  a  President  who  always 
sought  Cabinet  advice  and  followed  it.  Jackson  and  Grant,  on  the  other 
hand,  carried  their  military  traditions  into  the  White  House  and  dealt 
with  members  of  the  Cabinet  as  subordinates  whose  duty  it  was  to  carry  out 
the  orders  of  the  commander-in-chief ,  rather  than  as  advisers  whose  func- 
tion it  was  to  help  reach  a.  decision. 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     131 

standing  among  the  several  departments,  thus  enabling  the 
administration  to  put  unity  into  its  programme. 

More  vital  than  the  functions  of  the  Cabinet  as  a  whole  2.  as  in- 
are  those  of  its  members  as  individuals,  as  heads  of  depart-  dividuals- 
ments.     Every  head  of  a  department  is  responsible  to  the 
President  and  is  under  his  direction  at  all  times,  but  in 
practice  each  is  allowed  a  considerable  range  of  independence. 
This  must  necessarily  be  the  case,  for  if  everything  could 
be  supervised  directly  by  the  President  himself,  there  would 
be  no  need  for  departments  at  all.     Even  in  a  single  depart- 
ment, indeed,  there  is  always  more  to  do  than  the  official 
at  its  head  can  personally  attend  to,  hence  each  department 
is  divided  into  two  or  more  bureaus  under  bureau  chiefs 
or  commissioners.     This  internal  organization  of  the  depart- 
ments is  in  almost  all  cases  prescribed  by  law ;  it  is  not  left,  The  disin- 
as  in  most  other  countries,  to  be  arranged  by  executive  ^^n  ° 
orders.     The  scope  of  work  to  be  handled  by  these  bureaus  mental  ma- 
and  divisions  is  very  extensive.     No  head  of  a  department,  chinery- 
much  less  a  President,  can  ever  hope  to  keep  the  run  of  it. 
With  the  expanding  functions  of  federal  government,  more- 
over, it  is  growing  by  leaps  and  bounds.     The  adminis- 
trative machinery  at  Washington  is  now  a  dozen  times 
more  complex  than  it  was  a  generation  ago.     Not  only  has      • 
the  work  of  the  various  departments  been  divided,  redivided, 
and    subdivided    among   subordinate    bureaus,    but    many 
new  administrative  boards  and  commissions,  some  of  them 
exercising  functions  of  the  highest  importance,  such  as  the 
Interstate    Commerce    Commission,    the    Federal    Trade 
Commission,  the  Civil  Service  Commission,  and  the  Tariff 
Board,  have  been  established  altogether  outside  the  purview 
of  the  ten  regular  departments.     Of  these,  however,  more 
will  be  said  presently. 

Each  department  and  each  board  or  commission  has  its  General 
own  special  functions  to   perform,   these  functions  being  J°r^.f  the 
roughly   indicated   by   their   respective   titles.     The   exact  ments. 
scope  of  their  work  is  largely  defined  by  law.     Within  the 
bounds  thus  set  the  head  of  the  department  has  the  right 
to  make  regulations  affecting  the  conduct  of  business  within 
his  own  jurisdiction.     Each  has  also  been  given  by  law,  in 
many  cases,  the  right  to  issue  departmental  orders,  some  of 


132   THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  State- 
Depart- 
ment :   its 
functions : 


1.  diplo- 
matic. 


The 

diplomatic 

service. 


which  may  be  of  great  importance.  The  amount  of  work 
to  be  done  by  the  different  departments  varies  greatly  —  in 
ordinary  times  the  Treasury  Department  has  probably  the 
largest  amount  of  business  to  handle,  while  the  Department 
of  Labor  has  the  smallest,  although  its  functions  are  by  no 
means  inconsiderable. 

Let  us  examine,  one  by  one,  the  organization  and  chief 
functions  of  these  various  executive  agencies.1  The  State 
Department  is  the  oldest,  and  the  Secretary  of  State  is  for 
that  reason  the  senior  member  of  the  cabinet.  But  he  is 
not  a  prime  minister  in  any  sense  of  the  term.  His  depart- 
ment deals  chiefly  with  foreign  and  diplomatic  affairs. 
He  is  the  channel  of  intercourse  between  the  government 
of  the  United  States  and  all  foreign  governments ;  likewise 
the  medium  of  communication  between  the  national  and 
state  governments  in  this  country.  The  State  Depart- 
ment does  the  actual  work  of  negotiating  treaties,  sending 
and  receiving  diplomatic  correspondence,  giving  instructions 
to  American  ambassadors  abroad,  issuing  passports,  com- 
municating with  the  governors  of  the  various  states,  and 
so  on.  The  Secretary  of  State,  therefore,  is  the  American 
minister  of  both  interstate  and  foreign  affairs.  This  field, 
however,  is  one  in  which  the  President  himself  is  likely  to 
take  a  direct  interest,  and  the  foreign  work  of  the  State 
Department  is  usually  performed  under  the  President's 
close  supervision. 

A  word  as  to  the  diplomatic  service.  The  United  States 
sends  to  and  receives  from  all  the  sovereign  states  of  the 
world  certain  diplomatic  officials  known  as  ambassadors 
or  ministers,  according  to  their  rank.  Those  who  are  sent 
from  this  country  are  appointed  by  the  President  with  the 
consent  of  the  Senate ;  their  function  is  to  look  after  Ameri- 
can interests  in  the  countries  to  which  they  go  ;  they  report 
regularly  to  the  Secretary  of  State  and  get  their  instructions 
from  his  office.  At  the  more  important  foreign  capitals 
the  American  diplomatic  representatives  have  the  rank  of 
ambassadors ;  at  the  less  important  capitals  the  rank  of 

1  The  best  discussion  of  the  organization  and  work  of  the  various  execu- 
tive departments  is  that  contained  in  John  A.  Fairlie's  National  Adminis- 
tration of  the  United  States  (2d  ed.,  N.  Y.,  1914). 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     133 

ministers.  In  duties  and  authority,  however,  there  is  no 
important  difference  between  the  two.  The  United  States 
also  sends  and  receives  other  officials  known  as  consuls, 
and  the  consular  service  is  also  in  charge  of  the  State  Depart- 
ment, but  consuls  or  consuls-general  are  not  primarily 
diplomatic  officials.  They  are  concerned  chiefly  with  the 
task  of  furthering  the  commercial  interests  of  their  own 
countries. 

The  Secretary  of  State  has  functions  also  in  relation  to  2.  internal, 
home  affairs.  He  promulgates  the  laws  when  they  are 
passed  by  Congress ;  he  is  the  custodian  of  the  national 
archives  or  original  documents;  he  countersigns  the  Presi- 
dent's proclamations  and  he  is  the  keeper  of  the  great  seal. 
To  assist  him  in  the  performance  of  all  his  functions  the 
Secretary  of  State  has  three  assistant  secretaries,  also 
appointed  by  the  President.  The  State  Department  is 
divided  into  eight  bureaus,  each  of  which  takes  its  own  share 
of  the  general  work.  Some  notable  figures  have  served 
the  nation  as  secretaries  of  state,  among  them  John  Quincy 
Adams,  William  H.  Seward,  James  G.  Elaine,  and  John 
Hay.  In  the  early  days  of  the  Union  the  post  was  utilized 
on  several  occasions  as  a  stepping  stone  to  the  presidency, 
but  since  the  Civil  War  no  one  has  moved  from  one  office 
to  the  other.1 

The  Department  of  the  Treasury  is  next  in  order  of  sen-  The 
iority.     While  the  name  might  give  the  impression  that  this  £^^7 
department  corresponds  to  the  Exchequer  or  Ministry  of  ment. 
Finance  in  other  committees,  its  powers  of  financial  leadership 
are  somewhat  less  extensive.     In  most  other  governments 
the  chief  financial  minister  possesses  a  well-defined  initiative 
in  matters  relating  to  fiscal  legislation ;    he  introduces  all 
such  measures  and  defends  them  on  the  floor  of  parliament. 
In  the  United  States  the  Secretary  of  the  Treasury  has  no  Unlike  the 
such   formal   authority.     Financial   measures   are   brought  chequer  orX~ 
before  Congress  by  its  own  committees.     The  Secretary  may  French 
advise  or  recommend  ;  but  his  counsel  may  be  and  too  often  Financed  ° 

1  For  a  further  discussion  of  the  history  and  work  of  this  department 
see  Gaillard  Hunt,  The  Department  of  State  of  the  United  States,  Its  History 
and  Functions  (New  Haven,  1914),  and  W.  H.  Michael,  History  of  the  De- 
partment of  State  of  the  United  States  (Washington,  1901). 


134      THE  GOVERNMENT  OF  THE  UNITED  STATES 

is  disregarded  in  matters  affecting  both  revenue  and  ex- 
penditures. As  Congress  has  no  regular  budget  system 
the  Secretary  of  the  Treasury  lacks  the  outstanding  func- 
tion of  a  European  finance  minister,  namely,  the  prepara- 
tion and  presentation  of  the  budget.  And  it  is  right  here 
that  the  doctrine  of  separation  of  powers  has  worked  its 
greatest  havoc  in  wastefulness  and  extravagance.  The 
services  of  the  one  official  who  ought  to  know  most  about 
the  financial  resources  and  needs  of  the  government  have 
been  utilized  to  a  surprisingly  small  extent  in  this  country. 
Congress  has  guarded  with  extreme  jealousy  its  control  of 
the  purse,  even  to  the  extent  of  frequently  resenting  advice 
from  the  administrative  officials  who  are  best  equipped  to 
tender  it. 

One  result  If  it  be  asked,  Who,  then,  is  responsible  for  the  financial 
difference  policy  of  the  United  States  ?  the  answer  is,  that  real  responsi- 
bility belongs  to  nobody.  It  is  the  waif  of  dark-lantern 
politics.  For  a  few  years  in  the  early  days  of  the  Union, 
when  Alexander  Hamilton  was  Secretary  of  the  Treasury, 
the  United  States  had  a  definite  financial  policy  and  a 
statesman  who  was  responsible  for  it ;  but  that  day  has 
long  gone  by.  The  initiative,  influence,  and  responsibility 
which  Hamilton  took  into  his  own  aggressive  hands  is  now 
dissipated  among  various  committees  of  both  congressional 
chambers  to  an  extent  which  only  those  well-versed  in  legis- 
lative procedure  can  possibly  appreciate.1 

Work  of  the  The  actual  work  of  the  Treasury  Department,  neverthe- 
DepaaSrt-y  IGSS>  ^s  extensive  and  important.  It  may  be  grouped  into 
ment.  four  divisions.  First,  there  is  the  collection  of  revenue, 

especially  the  supervision  of  work  performed  by  customs 
officers  and  collectors  of  internal  revenue.  This  includes 
the  duty  of  issuing  all  regulations  relating  to  this  revenue 
service  and  the  deciding  of  appeals  which  come  to  the  de- 
partment from  the  rulings  of  subordinate  officers.  Second, 
there  is  the  custody  of  the  public  funds  and  the  paying  of  all 
bills  for  expenditures  which  have  been  properly  authorized. 
Sub-treasuries  have  been  established  in  various  large  cities 
of  the  country  to  serve  as  depositories  of  public  funds,  and 
these  are  under  the  department's  immediate  direction. 
-  \  See  below,  pp.  302-307. 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     135 

Government  money  may  also  be  deposited  in  national 
and  state  banks  at  the  discretion  of  the  Secretary  of  the 
Treasury  under  restrictions  provided  by  law.  Third  comes 
the  entire  supervision  of  the  currency,  including  control 
of  the  mints  which  coin  the  money.  These  functions  are 
directly  intrusted  to  the  Comptroller  of  the  Currency,  the 
Director  of  the  Mint,  and  other  officials  of  the  department. 
With  this  goes  also  the  supervision  of  the  Federal  Reserve 
Bank  system  and  the  inspection  of  the  national  banks. 
The  issue  of  bonds,  likewise,  when  authorized  by  Congress, 
is  in  the  department's  charge.  The  accounts  of .  every 
other  executive  department,  moreover,  are  audited  under 
the  supervision  of  the  Secretary  of  the  Treasury.  Finally, 
there  are  some  miscellaneous  powers  relating  to  the  life- 
saving  service,  the"  secret  service,  the  quarantine  and  public 
health  services,  and  the  government  printing  bureau.  This 
bare  enumeration  of  important  functions  will  at  least  suffice 
to  show  what  a  large  and  varied  amount  of  work  the  Treasury 
Department  has  to  do.  The  headship  of  this  department 
has  been  held  at  various  times  by  men  of  great  financial 
ability,  beginning  with  Alexander  Hamilton  and  including 
among  his  successors  Albert  Gallatin,  Salmon  P.  Chase,  and 
John  Sherman. 

The  War  Department  in  the  United  States  is  chiefly  The  War 
concerned,  of  course,  with  the  maintenance  and  adminis- 
tration  of  the  army.  It  has  to  do  not  only  with  the  enlist- 
ment and  equipment  of  men  for  all  branches  of  the  service, 
but  with  contracts  for  supplies,  with  fortifications,  and  the 
transportation  of  troops.  Even  in  time  of  peace  these 
functions  are  of  no  inconsiderable  importance,  but  in  time 
of  war,  as  recent  years  have  shown,  they  become  tasks 
of  stupendous  magnitude,  involving  millions  of  men  and 
billions  of  dollars.  Even  before  the  United  States  entered 
the  Great  War  the  internal  organization  of  this  depart- 
ment, with  its  eleven  different  bureaus,  was  complicated 
enough ;  to-day  it  is  so  elaborate  that  even  the  most  ele- 
mentary description  would  fill  many  pages.  In  addition 
to  these  military  functions,  moreover,  the  Secretary  of  War 
has  two  important  fields  of  civil  authority.  One  is  the 
supervision  of  certain  public  works  undertaken  by  the 


136      THE  GOVERNMENT  OF  THE  UNITED  STATES 

national  government,  such  as  the  dredging  of  harbors  or 
the  improvement  of  waterways.  All  the  navigable  waters 
of  the  United  States  are  under  the  final  jurisdiction  of  the 
War  Department.  No  obstructions  to  navigation  (in 
the  way  of  bridges  or  piers,  for  example)  may  be  erected 
anywhere  without  this  department's  consent.  The  other 
function  is  that  of  supervising  the  administration  of  the 
insular  possessions.  The  Philippines,  Porto  Rico,  and 
the  Panama  Canal  Zone  are  under  the  care  of  the  War 
Department,  the  two  former  having  been  left  there  since 
they  were  occupied  by  the  armed  forces  of  the  United  States 
during  the  Spanish  War.  Unlike  the  chief  European  coun- 
tries, the  United  States  has  no  department  of  colonies. 
The  War  Department  looks  after  the  possessions  just  men- 
tioned, but  Alaska  and  Hawaii,  being  ranked  as  territories, 
are  under  the  supervision  of  the  Interior  Department, 
its  head  is  The  head  of  the  War  Department  has  usually  been  a 
civilian  *  civilian,  but  men  of  large  military  experience,  Grant  and 
Sherman,  for  example,  have  held  the  post  at  times.  This 
is  quite  in  contrast  with  the  practice  in  the  countries  of 
continental  Europe,  where  high  officers  of  the  army  are 
practically  always  selected  for  the  post.  Both  methods 
have  their  respective  advantages.  An  army  officer  is  likely 
to  have  a  better  appreciation  of  the  technical  phases  of  the 
work,  while  a  civilian  may  be  much  better  qualified  to  handle 
such  matters  as  contracts,  transportation,  the  construction 
of  public  works,  and  the  administration  of  the  insular  pos- 
sessions. The  danger,  of  course,  is  always  that  of  friction 
between  a  civilian  secretary  and  the  military  heads  of 
the  various  technical  bureaus  in  his  department.  This 
danger  has  from  time  to  time  been  encountered  both  in  the 
United  States  and  in  England  where  a  similar  system  is  in 
operation.  In  spite  of  this,  however,  the  subordination  of 
the  military  to  the  civil  branch  of  the  government  is  some- 
thing that  should  at  all  times  be  clearly  provided  for  in  a 
democracy,  even  at  the  risk  of  some  slight  lapse  in  military 
efficiency.  The  ablest  and  most  successful  Secretary  of 
War  among  the  many  who  held  that  office  during  the  nine- 
teenth century  was  a  civilian,  Edward  M.  Stanton. 

The  Department  of  the  Interior  has  various  functions 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     137 

which,  in  the  main,  are  not  at  all  analogous  to  those  pos-  Department 
sessed  by  similar  departments  in  other  countries.  It  does 
not,  as  in  France,  for  example,  exercise  a  general  super- 
vision over  the  government  of  cities  and  towns.  It  has 
nothing  whatever  to  do  with  local  government,  police  ad- 
ministration, and  the  other  functions  which  Europeans 
associate  with  the  " interior"  work  of  national  government. 
Its  functions,  in  fact,  are  of  such  a  miscellaneous  character 
that  it  has  been  jocularly  termed  the  "  Department  of  Things 
in  General."  They  can  be  enumerated,  but  not  easily 
classified.  The  department  has  the  control  of  all  the  public 
lands,  including  national  parks,  and  the  handling  of  Indian 
affairs.  It  has  direct  supervision  over  the  territorial  affairs 
of  Alaska  and  Hawaii.  It  has  charge  of  patents,  pensions, 
the  geological  survey,  and  various  other  things  which  have 
no  relation  to  one  another.  Finally,  it  distributes  the  gov- 
ernment appropriations  to  various  educational  institutions 
and  supervises  certain  hospitals  in  the  District  of  Columbia. 

The  Postmaster-General  is  what  his  title  implies.  His  The  Post- 
department  has  the  largest  number  of  employees  and  hence 
the  greatest  range  of  political  patronage.  He  awards  con- 
tracts for  the  transportation  of  the  mails  and  for  all  other 
forms  of  service  in  his  department.  He  assumes  the  over- 
sight of  the  entire  postal  business  of  the  United  States,  which 
is  the  largest  single  business  enterprise  of  any  sort  in  the 
world  if  one  includes  the  parcel  post  system,  the  handling 
of  money  orders,  and  the  postal  savings  banks.  An  impor- 
tant authority  possessed  by  the  Postmaster-General  is 
that  of  denying  the  use  of  the  mails  to  any  concern  which 
may  come  under  the  ban  for  using  the  service  wrongfully. 
He  may  also  debar  any  obnoxious  publication  from  passage 
through  the  mails.  This  latter  power  has  been  extensively 
used  during  recent  years. 

The  Attorney-General  is  the  head  of  the  Department  TheDe- 
of  Justice  and  the  chief  legal  adviser  of  the  national  govern- 
ment.  He  is  its  representative  in  all  legal  proceedings  to 
which  the  United  States  is  a  party.  He  conducts  proceed- 
ings against  corporations  or  individuals  who  violate  the 
federal  laws  and  supervises  the  work  of  the  federal  district 
attorneys  throughout  the  country.  He  investigates  and 


138      THE  GOVERNMENT  OF  THE  UNITED  STATES 

reports  to  the  President  upon  all  applications  for  reprieves 
or  pardons.  His  department  has  general  oversight  of  the 
federal  penitentiaries  and  other  institutions  of  correction. 
The  post  is  always  held  by  a  lawyer  of  high  standing. 
The  Navy  The  functions  of  the  Navy  Department  are  for  the  most 
mentrt~  Par^  imPued  by  its  designation.  The  construction,  arming, 
and  distribution  of  the  naval  vessels,  both  regular  and 
auxiliary,  the  establishment  and  maintenance  of  navy 
yards,  the  enlistment  of  men,  the  making  of  contracts  for 
supplies,  and  the  general  administration  of  the  country's 
armed  forces  afloat  —  all  these  branches  of  work  are  in- 
cluded. The  Secretary  of  the  Navy,  like  the  Secretary  of 
War,  is  practically  always  chosen  from  civil  life,  and  the 
technical  work  of  the  department  is  performed  by  various 
subordinate  bureaus,  each  of  which  is  headed  by  a  naval 
officer  of  high  rank.  Although  the  chief  insular  possessions 
of  the  United  States  are  administered  under  the  supervision 
of  the  War  Department,  the  Secretary  of  the  Navy  has 
charge  of  the  smaller  islands,  Tutuila  (in  the  Samoan  group), 
Guam  in  the  Pacific,  and  the  recently  acquired  Danish 
West  Indies. 

The  De-  The  Secretary  of  Agriculture  has  acquired  many  branches 

°^  jurisdiction,  all  of  which  have  to  do  with  agriculture  either 
directly  or  indirectly.  They  include  the  maintenance  of 
agricultural  experiment  stations,  the  distribution  of  seed, 
the  establishment  of  cattle  quarantines,  the  inspection  of 
meats  and  other  food  products,  the  making  of  scientific 
studies  relating  to  agriculture  and  the  issue  of  bulletins, 
the  control  of  the  weather  bureau  and  the  forest  service, 
the  management  of  the  crusade  against  noxious  insects,  and 
many  other  things  of  an  allied  nature.  The  work  of  this 
department  is  supplemented  by  the  states,  most  of  which 
,  maintain  their  own  departments  of  agriculture. 

The  De-  Two  departments  of  relatively  recent  establishment  are 

Commerce^  those  °^  Commerce  and  of  Labor.  They  were  originally 
united  but  were  divided  in  1913.  The  Department  of 
Commerce  has  to  do  with  the  development  of  foreign  and 
domestic  trade,  the  control  of  corporations,  the  licensing 
land  inspection  of  steamboats,  the  regulation  of  fisheries, 
,the  lighthouse  service,  the  taking  of  the  census,  and  some 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     139 

minor  matters.  The  Department  of  Labor  has  direction  of  TheDepart- 
the  immigration  service,  the  administration  of  the  naturali- 
zation  laws,  and  the  adjustment  of  relations  between  labor 
and  capital.  It  includes  a  children's  bureau  to  which  is 
intrusted  the  execution  of  the  federal  laws  relating  to  the 
employment  of  child  labor  in  industry.  In  a  word  it  seeks 
to  do  for  the  interests  of  labor  what  other  departments 
have  done  for  agriculture  and  commerce  respectively. 

The  heads  of  the  ten  departments,  namely,  the  Secre- 
tary of  State,  Secretary  of  the  Treasury,  Secretary  of  War, 
Secretary  of  the  Interior,  Postmaster-General,  Attorney- 
General,  Secretary  of  the  Navy,  Secretary  of  Agriculture, 
Secretary  of  Commerce,  and  Secretary  of  Labor,  make  up 
the  Cabinet.  Subject  to  the  general  direction  of  the  Presi- 
dent and  within  the  range  of  the  laws,  each  has  control  of 
things  in  his  own  division  of  work.  The  degree  of  independ- 
ence possessed  by  each  is  nowhere  exactly  defined.  One 
thing  is  certain,  however,  and  that  is  the  absence  of  any 
jurisdiction  on  the  part  of  the  Cabinet  over  its  individual 
members.  The  Cabinet  as  a  whole  cannot  give  any  orders 
to  its  own  members.  That  can  be  done  only  by  the  Presi- 
dent. Members  of  the  Cabinet  do,  however,  consult  the 
President  on  all  important  problems  within  their  depart- 
ments, and  he  may,  of  course,  not  only  lay  these  before  the 
whole  Cabinet  for  discussion  but  may  be  governed  thereby. 

In    addition   to    these   ten    regular   departments,    there  The  de- 
are  some  other  branches  of  national  administration  whose  *ached 
heads   are  not   members   of  the   Cabinet.     These   federal  boards, 
agencies,  which  are  not  called  departments  but  bureaus, 
commissions,  or  boards,  have  been  established  from  time 
to  time  under  the  authority  of  acts  passed  by  Congress, 
but  the  chiefs  of  the  bureaus  and  the  members  of  the  com-  ' 
missions  are  appointed  by  the  President  with  the  consent 
of  the  Senate.     For  the  policy  of  placing  these  bureaus  and 
boards  outside  the  purview  of  any  of  the  regular  depart- 
ments there  have  been  various  reasons,  historical,  political, 
and  personal.     In  the  main,   however,   these  administra- 
tive agencies  deal  either  with  functions  which  are  rather 
too  important  to  be  committed  to  subordinate  officials  in 
one  of  the  regular  departments  and  yet  are  not  important 


140      THE  GOVERNMENT  OF  THE  UNITED  STATES 

enough  to  warrant  the  creation  of  a  new  department,  or 
they  are  functions  which  from  their  intrinsic  nature  can 
most  appropriately  be  handled  by  a  board  of  several  officials 
responsible  directly  to  the  President. 

The  inter-  The  most  widely  known  among  these  bodies  is  the  Inter- 
merceCCom-  state  Commerce  Commission,  established  in  1887  to  super- 
mission,  vise  the  execution  of  the  national  laws  relating  to  foreign 
and  interstate  trade,  with  power  to  investigate  complaints. 
The  original  powers  of  the  commission  have  since,  by  suc- 
cessive acts  of  Congress,  been  greatly  extended.  It  is  now 
composed  of  nine  members,  each  appointed  for  a  six-year 
term  by  the  President  with  the  consent  of  the  Senate. 
The  work  of  the  commission  is  quasi-judicial  in  its  nature, 
for  it  adjudicates  controversies  between  interstate  trans- 
portation companies  and  shippers  relating  to  rates  and 
conditions  of  service.  From  its  rulings  there  is,  however, 
an  appeal  on  points  of  law  to  the  Supreme  Court  of  the 
United  States.  The  commission  has  become  the  right  hand 
of  Congress  in  the  exercise  of  its  commerce  power.1 
The  Another  board  which  exercises  authority  in  the  domain 

Trade*         °^  commerce  and  industry  is  the  Federal  Trade  Commission 
Com-  established  in  1.914.     It  is  composed  of  five  members,  each 

appointed  by  the  President  with  the  concurrence  of  the 
Senate  for  a  seven-year  term.  This  commission  took  over 
the  work  formerly  handled  by  the  Bureau  of  Corporations 
in  the  Department  of  Commerce,  but  it  has  acquired  from 
Congress  other  authority  in  addition.  It  is  empowered 
in  a  broad  way  to  investigate  and  to  prevent  all  unfair 
competition  in  commerce  and  industry,  save  among  trans- 
portation companies  and  banks,  both  of  which  are  under 
.  the  supervision  of  other  federal  authorities.2 

The  Still  more   recently,   in   1916,    Congress   authorized  the 

establishment  of  a  Tariff  Commission  with  a  membership 
of  five,  each  appointed  by  the  President  with  senatorial 
confirmation,  for  the  unusually  long  term  of  twelve  years.3 

1  So  long  as  the  railroads  remain  under  government  operation,  how- 
ever, its  influence  is  much  diminished. 

2  See  also  below,  p.  259. 

3  The  initial  appointments  were  in  all  cases  except  one  made  for  shorter 
terms  in  order  that  the  various  members  might  end  their  terms  periodically 
and  not  all  together. 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     141 

It  is  intended  that  this  board  shall  make  a  thorough  study 
of  all  questions  relating  to  the  importation  of  merchandise 
and  shall  thus  provide  data  upon  which  the  tariff,  in  future 
years,  can  be  framed  with  reference  to  the  real  economic 
needs  of  the  country  rather  than  in  obedience  to  sectional  or 
class  or  political  pressure.  The  commission  has,  of  course, 
no  powers  •  except  those  of  an  advisory  nature.  Congress 
retains  full  authority  over  the  traffic  schedules. 

Another  important  federal  board  is  the  Civil  Service  The  civil 
Commission  which  helps  to  recruit  the  public  service. 
The  Spoils  System  flourished  in  all  its  vigor  from  the  first  sion. 
inauguration  of  President  Jackson  in  1829  until  the  assassi- 
nation of  President  Garfield  in  1881,  a  period  of  more  than 
half  a  century.  During  all  of  these  years  it  was  a  persistent 
troubler  in  Israel,  giving  successive  Presidents  no  end  of 
embarrassment  and  taking  from  them  the  time  and  strength 
which  should  have  been  given  to  things  far  more  important. 
Public  opinion,  however,  gradually  solidified  against  the 
system,  and  the  tragic  end  of  President  Garfield  at  the  hands 
of  a  disappointed  office-seeker  gave  a  new  impetus  to  the 
movement  for  civil  service  reform.  In  1883  Congress 
passed  the  act  which  laid  the  basis  of  the  present  civil 
service  system  and  authorized  the  establishment  of  a  com- 
mission to  carry  out  its  provisions.  This  commission  is  a 
body  of  three  members,  each  appointed  by  the  President 
with  the  Senate's  approval,  but  not  more  than  two  of  the 
members  may  belong  to  the  same  political  party.  It  pre- 
pares the  rules  governing  civil  service  competition,  super- 
vises the  work  of  examining  candidates,  and  certifies  the 
successful  candidates  for  appointment.  With  more  and 
more  offices  placed  within  the  classified  service,  the  func- 
tions of  the  commission  have  steadily  become  greater  in 
scope. 

A  few  other  executive  agencies  remain  to  be  mentioned,  other 
The  Bureau  of  Efficiency,  established  in  1917,  has  for  its 
chief  function  to  suggest  improvements  in  the  system  and 
business  methods  of  the  various  government  offices  in  Wash- 
ington. The  Library  of  Congress,  the  largest  repository  of 
books  in  the  country  and  one  of  the  largest  in  the  world, 
is  not  included  in  any  of  the  regular  departments,  its  librarian 


142      THE  GOVERNMENT  OF  THE  UNITED  STATES 

being  responsible  directly  to  the  President.  The  govern- 
ment printing  office  is  also  a  detached  unit  of  administra- 
tion, although  there  is  no  sensible  reason  why  it  should  be. 
The  decen-  It  will  be  seen  from  the  foregoing  enumeration  that 
^adminis-  tne  agencies  of  national  administration  are  diverse  in  their 
trative  methods  of  organization  and  even  more  varied  in  the  scope 
ies>  of  their  work.  They  are  not  more  numerous,  however, 
than  in  the  national  government  of  any  other  great  nation. 
Their  relation  to  one  another  is  neither  intimate  nor  at  all 
times  accurately  defined,  but  the  saving  grace  of  the  whole 
v -system  is  the  fact  that  it  revolves  on  a  definite  centre,  the 
[executive  supremacy  of  the  President.  There  is  no  diffusion 
of  administrative  responsibility  in  the  national  govern- 
ment, such  as  so  commonly  exists  in  the  government  of 
American  states  and  cities.  The  President  is  the  apex  of 
the  executive  pyramid.  All  administrative  responsibility 
converges  in  his  hands.  So  long  as  that  remains  true, 
so  long  as  he  appoints  all  heads  of  departments,  chiefs  of 
bureaus,  and  members  of  commissions,  and  so  long  as  he  may 
remove  them  at  will,  the  elaboration  of  administrative 
machinery  need  bring  no  friction  or  working  at  cross  pur- 
poses. If,  however,  Congress  should  ever  succeed  in  limit- 
ing the  right  of  the  President  to  remove  members  of  his 
Cabinet  and  other  executive  officers,  as  it  tried  to  do  by  the 
Tenure  of  Office  Act  in  1867,  the  system  of  centralized 
administrative  responsibility  would  quickly  break  down. 
So  long  as  the  separation  of  powers  remains  a  corner  stone 
of  American  government  the  supremacy  of  the  chief  execu- 
tive in  all  strictly  administrative  matters  must  be  closely 
guarded  or  chaos  in  the  business  affairs  of  the  nation  will 
inevitably  ensue. 

Relation  of        While,  however,  the  executive  branch  of  the  government 
mlnStmtkm  *s  no^  Directly  responsible  to  Congress  in  the  sense  that  the 
^Congress!  English  Cabinet  is  responsible  to  parliament,  this  does  not 
mean  that  Congress  can  in  no  way  influence  the  course  of 
national  administration.     On  the  contrary  it  is  Congress 
that    authorizes    the    establishment    of    each    department, 
bureau,  or  commission ;  it  is  Congress  that  gives  each  its 
functions ;   it  is  Congress  that  grants  the  money  which  en- 
ables every  administrative  agency  to  carry  on  its  work. 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     143 

Congress  can  reorganize  any  department  or  even  abolish 
it  altogether,  subject  of  course  to  the  obvious  condition 
that  to  do  so  it  would  probably  have  to  override  a  presi- 
dential veto.  Most  important  of  all  among  congressional 
powers  over  the  administration,  however,  is  the  authority 
to  give  or  withhold  appropriations.  This,  in  the  last  analy- 
sis, is  the  weapon  with  which  it  can  bring  any  administra- 
tive officer,  and  sometimes  even  the  President,  to  terms. 
From  the  various  departments,  moreover,  Congress  can  and 
does  require  reports  and  information ;  it  can  investigate 
any  department  at  will,  and  in  the  last  resort  it  has  the 
power  of  impeachment.  Let  it  not  be  thought,  accordingly, 
that  because  administration  shares  place  with  legislation  as 
a  coordinate  and  not  as  a  subordinate  function  of  govern- 
ment it  is  altogether  immune  from  legislative  contact  or 
influence. 

It  has  often  been  urged  that  a  greater  degree  of  harmony  should 
and  cooperation  between  the  executive  and  legislative 
branches  of  the  national  government  would  be  secured  if  sit  in 
members  of  the  Cabinet  were  allowed  to  sit  and  speak 
(although  not  to  vote)  in  both  Houses  of  Congress.  Con- 
gress has  an  undoubted  right  to  give  them  this  privilege 
under  the  provision  of  the  constitution  which  authorizes 
both  Houses  to  make  their  own  rules  of  procedure.  For 
a  hundred  years,  moreover,  delegates  from  the  territories 
have  been  allowed  to  sit  in  the  House  of  Representatives 
and  to  speak  there,  although  having  no  right  to  vote. 
The  constitution  excludes  any  person  "  holding  any  office 
under  the  United  States "  from  being  "a  member  of  either 
House  during  his  continuance  in  office,"  but  the  head  of  a 
department,  by  taking  a  part  in  the  deliberations  of  either 
House,  would  not  become  a  member  of  it  any  more  than 
the  chaplain  or  the  clerk.  He  would  have  no  official  term, 
no  privilege  of  immunity  from  arrest,  no  vote,  none  of  the 
constitutional  attributes  of  a  member. 

Admitting,  however,  that   Congress  has  the  power  to  Merits  and 
admit  the  members  of  the  Cabinet  to  its  sessions,  would  ^f^ 
it  be  expedient  to  do  so?     That  question  has  been  many  proposal, 
times  discussed,  and  there  are  undoubtedly  two  sides  to  it. 
On  the  one  hand,  it  has  been  urged  that  Congress  could, 


144      THE  GOVERNMENT  OF  THE  UNITED  STATES 


English 
and 

American 
Cabinets 
contrasted : 


1.  qualifi- 
cations of 
members. 


2.  powers  of 
initiative 
in  legisla- 
tion. 


in  this  way,  obtain  more  useful  and  more  exact  information 
than  it  now  obtains  through  roundabout  channels ;  that 
the  change  would  inspire  the  President  to  choose,  as  mem- 
bers of  the  Cabinet,  men  of  greater  public  experience,  and 
that  it  would  also  compel  these  men  to  become  proficient 
in  the  affairs  of  their  several  departments,  for  no  incapable 
head  of  a  department  could  hope  to  influence  the  delibera- 
tions of  Congress  day  by  day.  On  the  other  hand,  it  is 
replied  that  to  place  on  the  floor  of  each  chamber  ten  cabinet 
secretaries  of  national  prestige  and  long  public  experience 
would  give  the  executive  branch  of  the  government  a  greatly 
increased  influence  over  the  making  of  laws  and  appropria- 
tions. Members  of  the  Cabinet,  it  is  also  said,  have  already 
too  much  to  do  in  their  several  departments  without  daily 
attendance  at  congressional  debates.  Frequently  they  have 
complained  of  the  time  required  of  them  in  appearing  before 
congressional  committees.  There  are  those  who  suspect, 
moreover,  that  the  admission  of  administrative  officers  to 
the  floor  of  Congress  would  be  the  thin  end  of  a  wedge  which 
would  ultimately  be  driven  deep  into  the  principle  of  checks 
and  balances,  thus  breaking  down  a  political  tradition 
which  still  has  its  vigorous  supporters.  It  is  not  unlikely, 
however,  that  the  experiment  will  some  day  be  tried. 

A  favorite  theme  of  writers  in  the  field  of  comparative 
government  has  been  the  series  of  contrasts  between  the 
cabinet  system  of  England  and  that  of  the  United  States. 
The  differences,  of  course,  are  wide  and  fundamental.  It  is 
hardly  worth  while  to  discuss  them  at  length,  for  they  are 
relatively  easy  to  comprehend.  Here  are  the  chief  discrep- 
ancies set  down  under  three  main  heads : 

The  members  of  the  English  Cabinet  must  be  members 
of  one  or  other  branch  of  parliament ;  in  the  United  States 
the  members  of  the  Cabinet  cannot  be  members  of  either 
House  of  Congress. 

In  England  the  Cabinet  is  the  "great  standing  committee 
of  parliament,"  arranging  all  important  business  in  advance, 
championing  these  measures  on  their  way  through  both 
chambers,  and  assuming  the  function  of  legislative  leader- 
ship. In  the  United  States  the  Cabinet  may,  in  an  informal 
way,  help  the  President  with  proposed  projects  of  legisla- 


THE  CABINET  AND  NATIONAL  ADMINISTRATION     145 

tion,  but  it  can  assume  no  formal  responsibility  and  it  can 
take  no  open  share  in  facilitating  the  progress  of  legislation. 
The  most  important  practical  power  of  the  English  Cabinet, 
that  of  guiding  the  business  of  national  legislation,  does  not 
belong  to  the  Cabinet  in  America. 

Finally,  the  English  Cabinet  is  responsible  to  the  House  3.  responsi- 
of  Commons,  while  the  Cabinet  of  the  United  States  is  l 
not  responsible  to  Congress.  An  adverse  vote  in  the  House 
of  Commons  is  sufficient  to  overthrow  the  Cabinet  in  Eng- 
land ;  a  hundred  adverse  votes  in  the  Senate  or  the  House 
of  Representatives  do  not  necessarily  cause  the  members  of 
the  American  Cabinet  to  resign.  Their  responsibility  is  to 
the  President  alone.  This  is,  after  all,  the  most  outstanding 
of  all  differences  between  the  two  Cabinets.  In  England 
the  executive  power  is  dependent  upon  the  will  of  parlia- 
ment ;  in  America  it  is  independent  of  Congress,  supreme 
within  its  own  sphere  and  accountable  to  the  people  alone. 

To  attempt  any  demonstration  that  either  system  is 
superior  to  the  other  would  be  profitless.  It  would  be  like 
engaging  in  a  controversy  upon  the  relative  prowess  of  an 
elephant  and  a  whale.  Each  is  fitted  to  its  own  element 
and  would  make  a  ludicrous  showing  were  it  to  change 
habitats.  Both  the  English  and  American  Cabinet  sys- 
tems have  served  satisfactorily,  each  in  its  own  political 
environment,  and  the  adaptation  of  the  agent  to  its  environ- 
ment is  as  essential  in  the  body  politic  as  in  other  organisms. 
If  the  American  system  shows  its  weakness  in  the  defective 
cooperation  which  it  provides  between  the  two  great  arms 
of  government,  it  has  an  offsetting  merit  in  the  protection 
which  it  affords  against  any  undue  gravitation  of  power  into 
a  few  hands. 


CHAPTER  X 

THE   SENATE  :     ITS   ORGANIZATION 

why  the  DURING  the  Revolutionary  War  and  under  the  Articles 

double-         o£  Confederation,  the  common  affairs  of  the  thirteen  states 

chamber  .—  .  'if  •       i 

system  were  managed  by  a  Congress  which  consisted  of  a  single 
Tdo  ted  chamber.  It  was  decided  by  the  constitutional  convention 
of  1787  at  an  early  stage  in  its  deliberations,  however, 
that  the  new  government  should  provide  a  Congress  of  two 
chambers.  This  decision  was  reached  with  practical  una- 
nimity, as  it  seemed  unwise  to  give  to  a  single  chamber,  par- 
ticularly to  one  chosen  by  popular  vote,  the  great  legislative 
authority  which  it  was  proposed  to  vest  in  the  new  govern- 
ment. Such  a  single  chamber  might  enact  laws  hastily, 
might  be  moved  by  gusts  of  prejudice,  and  might  become 
in  the  end  a  legislative  octopus.  Most  of  the  colonies, 
moreover,  had  maintained  two  legislative  chambers,  likewise 
all  of  the  new  state  constitutions  except  those  of  Pennsyl- 
vania, Georgia,  and  Vermont  made  provisions  for  the  double- 
chamber  system.  The  bicameral  system  seemed  to  be 
indicated  by  the  lessons  of  experience  and  by  considerations 
of  prudence,  in  view  of  the  "propensity  of  all  single  and 
numerous  assemblies  to  yield  to  the  impulse  of  sudden  and 
violent  passions,  and  to  be  seduced  by  factious  leaders  into 
intemperate  and  pernicious  resolutions."  But  there  was 
another  consideration,  namely,  the  desirability  of  embody- 
ing, somewhere  in  the  new  government,  the  principle  that 
all  the  states  were  equal.  Without  provision  for  two  houses, 
the  terms  of  the  first  great  compromise  would  not  have  been 
possible.1  The  adoption  of  the  double-chamber  system 
was  settled  before  the  dispute  over  the  basis  of  representa- 
1  See  above,  p.  33, 
146 


THE  SENATE:    ITS  ORGANIZATION  147 

tion  became  acute,  but  the  compromise  sealed  the  matter 
beyond  the  possibility  of  reopening  it. 

The  basis   of  representation  in   Congress,   therefore,   is  The  Con- 
this :    two   interests   are  to   be   represented,   namely,   the  basif  of™1 
states  and  the  people  of  the  states.     The  states  as  such  representa- 
are  equally  represented,  by  each  having  two  senators  in  the  congress 
upper  branch  of  Congress,  the  Senate.     The  people  of  the 
several  states,  on  the  other  hand,  are  represented  by  a  vary- 
ing number  of  representatives  in  the  lower  branch  of  Con- 
gress, the  House  of  Representatives.     In  both  cases  the  unit 
of  representation  is  the  state.     Congress,  accordingly,  is  a 
bicameral  convention  of  state    envoys;   its    members    are 
officers  of  the  states  from  which  they  come  and  not  officers 
of  the  national  government. 

In  the  constitution,  as  originally  adopted,  it  was  pro-  Reasons  for 
vided  that  the  Senate  of  the  United  States  should  be  made  the+£r!f  71 

method  of 

up  of  two  senators  from  each  state,  chosen  by  the  legisla-  choosing 
ture  thereof  for  six  years.  In  making  this  provision  that  senators: 
senators  should  be  chosen  by  the  various  state  legislatures 
two  purposes  were  in  view.  First,  it  was  the  intention  that 
the  Senate  should  be  a  conservative  body,  made  up  of  men 
who  had  gained  political  experience  and  distinction  in  their 
own  states,  —  men  who  might  not  possess  the  attributes 
of  popularity  but  who  would  command  respect  by  their  i.  the 
personal  attainments.  The  fear  of  demagogism,  of  legisla- 
tion  dictated  by  selfishness  or  ignorance,  cropped  out  per-  conserva- 
sistently  in  the  deliberations  of  1787.  "A  good  govern- 
ment,"  wrote  one  of  those  who  had  much  to  do  with  the 
framing  of  the  constitution,  "implies  two  things :  first, 
fidelity  to  the  object  of  government,  which  is  the  happiness 
of  the  people ;  secondly,  a  knowledge  of  the  means  by  which 
that  object  can  be  best  attained.  Some  governments  are 
deficient  in  both  these  qualities ;  most  governments  are 
deficient  in  the  first.  I  scruple  not  to  assert,  that  in  Ameri- 
can governments  too  little  attention  has  been  paid  to  the 
last."  1  Honesty  and  good  intent,  in  other  words,  would 
not  of  themselves  suffice  as  the  basis  of  an  enduring  govern- 
ment. Precaution  must  be  taken  to  make  place  in  the 
national  legislature  for  a  small  body  of  men  who  would 
1  Alexander  Hamilton  in  The  Federalist,  No.  62. 


148      THE  GOVERNMENT  OF  THE  UNITED  STATES 

be  chosen  because  '  of  their  knowledge,  judgment,  and 
maturity.1  Such  men  would,  it  was  felt,  be  more"  (readily 
chosen  by  the  state  legislatures,  they  having,  as  it  was 
asserted,  "more  sense  of  character"  than  the  people  at 
large. 

2.  to  But  there  was  a  second  reason  for  intrusting  the  selection 

theperma-  °^  senators  to  the  legislatures  of  the  several  states,  namely, 
nenceofthe  to  insure  the  permanence  of  these  legislatures  themselves. 
latures!818"  ^he  P°Pular  ^ear  that  the  creation  of  a  vigorous  national 
government  would  be  the  first  step  towards  the  ultimate 
destruction  of  the  new  state  administrations  was  one  which 
had  to  be  reckoned  with.  Hence  an  important  wheel  in 
the  national  machine  was  geared  directly  to  the  mechanism 
of  state  government  so  that  the  state  legislatures  could  never 
be  eliminated  without  bringing  down  one  branch  of  Congress 
as  well.  The  Senate  was  to  be  a  constitutional  link  binding 
together  the  two  spheres  of  government,  state  and  national. 
It  was  a  hostage  given  to  the  states  to  insure  the  perma- 
nence of  their  legislatures. 

The  Senate  was  intended  to  be  the  balance  wheel  of  the 
new  government.  It  was  to  serve  as  a  privy  Council  and 
House  of  Lords  combined,  a  check  on  certain  powers  of 
the  executive  (in  the  matter  of  treaties  and  appointments), 
and  a  brake  upon  the  radicalism  of  the  lower  chamber. 
Senators  were  given  the  longest  terms  provided  for  any 
non-judicial  officers, — -six  years, — in  order  to  reduce  the 
evils  of  what  Hamilton  termed  "the  mischievous  effects 
of  a  mutable  or  unstable  government, "  to  trace  which,  he 
declared,  "  would  fill  a  volume."  2  If  Hamilton  had  been 
given  his  way,  they  would  have  been  chosen  for  life.  While 
his  colleagues  were  not  ready  to  go  so  far,  they  concurred 
in  the  opinion  that  one  of  the  two  legislative  chambers 
should  be  so  constituted  as  to  protect  the  rights  of  property 
against  the  possible,  and  even  probable,  inroads  of  an 
aggressive  and  capricious  majority  among  the  people.3  It 
was  Washington, '  according  to  a  somewhat  dubious  tradi- 

1  George  H.  Haynes,  The  Election  of  Senators  (N.  Y.,  1906). 

2  The  Federalist,  No.  62. 

3  So  far  as  the  records  of  the  convention  of  1787  disclose,  James  Wilson 
of  Pennsylvania  was  the  only  delegate  who  urged  the  direct  popular  elec- 
tion of  senators. 


THE  SENATE:    ITS  ORGANIZATION  149 

tion,  who  remarked  that  the  Senate  was  to  be  a  saucer  into 
which  the  hot  tea  which  came  steaming  from  the  House 
might  be  poured  to  cool. 

The  Senate,  as  originally  designed  and  established,  is  a  The  Senate 
purely  American  product.  Some  antiquarians  have  un-  nouTfnsti- 
earthed  -a  precedent  for  it  in  the  ancient  confederation  of  tution. 
Hellenic  states  "where  each  city,  however  different  in 
wealth,  strength,  and  other  circumstances,  had  the  same 
number  of  deputies  and  an  equal  voice  in  everything  that 
related  to  the  concerns  of  Greece."  Others  have  found  its 
prototype  in  both  the  United  Netherlands  and  the  Swiss 
Confederation.  There  is  no  need,  however,  to  have  gone 
seeking  so  far  afield.  The  framers  of  the  constitution  were 
quite  familiar  with  upper  chambers  in  colonial  times,  some 
of  which,  like  the  council  in  Massachusetts,  were  made  up 
of  members  chosen  to  represent  districts,  and  all  of  which 
were  intended  to  serve  as  checks  upon  the  popular  assem- 
blies. Starting  with  this  upper  chamber  of  colonial  days 
the  organization  of  the  new  Senate  was  merely  adapted  to 
the  political  exigencies  of  the  time. 

For  more  than  a  century  senators  were  elected  by  the  Older  plan 
state  legislatures  as  the  constitution  originally  provided.  ^^n-smg 
Each  legislature,  in  the  first  instance,  was  left  to  determine  described, 
the  procedure  by  which  the  choice  should  be  made,  whether 
by  its  two  branches  acting  separately  or  in  joint  session. 
But  in  various  states  controversies  arose  between  the  two 
legislative  chambers,  and  these  controversies  sometimes 
prevented  any  choice  being  made  at  all.  In  1866,  there- 
fore, Congress  passed  a  law  making  the  procedure  uniform 
in  all  the  states.  In  brief,  the  provision  was  that  the  two 
branches  of  a  state  legislature  should  first  ballot  separately, 
and  if  they  could  each  elect  the  same  candidate  by  a  clear 
majority,  well  and  good.  But -if  the  two  chambers  could 
not  agree  on  the  choice  of  a  senator  in  that  way,  they  were 
then  to  meet  in  joint  session  and  keep  balloting  day  after 
day  until  some  one  obtained  a  majority.  If  a  vacancy  in 
the  senatorial  representation  from  any  state  occurred  at 
a  time  when  the  state  legislature  was  not  in  session,  the  gov- 
ernor of  the  state  was  empowered  by  the  constitution  to 
name  some  qualified  person  to  serve  until  the  legislature 


150      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Objections 
to  this 
plan. 


The  move- 
ment for 
the  direct 
popular 
election  of 
senators. 


could  meet  and  make  a  choice,  or  should  adjourn  without 
making  a  choice. 

But  as  time  went  on  there  came  a  growing  demand  that 
senators  should  be  chosen  by  direct  popular  election,  and 
not  by  the  state  legislatures.  Various  factors  contributed 
to  this  demand.  Far  from  always  choosing  men  of  ripe 
political  judgment  and  stanch  integrity,  some  of  the  state 
legislatures  allowed  their  choice  of  senators  to  be  dictated 
by  ulterior  motives.  The  choice  was  never  determined,  in 
fact,  by  the  legislature  but  by  a  party  caucus  of  the  majority 
members.  Partisan  service,  without  any  other  qualifica- 
tion, on  many  occasions  placed  senators  in  their  seats.  The 
dictation  of  political  bosses  counted  for  more  with  members 
of  state  legislatures  than  the  promptings  of  their  own  judg- 
ment or  the  trend  of  public  opinion.  The  influence  of 
great  corporations  was  able,  time  and  again,  to  determine 
the  election.  Even  outright  bribery  was  not  unknown. 
Not  that  all  senators,  of  course,  or  even  most  of  them,  were 
chosen  in  obedience  to  reprehensible  motives;  the  great 
majority  of  United  States  senators  obtained  their  seats 
by  methods  which  were  perfectly  proper  and  beyond  criti- 
cism, being  chosen  because  the  several  legislatures  regarded 
them,  sometimes  in  the  narrow  perspective  of  their  political 
bias,  as  worthy  representatives  of  their  various  states. 
But  departures  from  the  paths  of  legislative  rectitude 
were  all  too  frequent,  and  they  stamped  upon  the  public 
mind  the  impression  that  indirect  election  inevitably  meant 
intrigue,  that  it  gave  an  unfair  advantage  to  the  candidate 
with  large  funds  at  his  disposal,  and  that  it  made  of  the 
Senate  a  reactionary  body.  There  were  frequent  deadlocks, 
too,  ballot  after  ballot  being  taken  daily  for  weeks  and  even 
for  months  without  any  one  obtaining  a  clear  majority. 
In  this  way  a  state  was  often  deprived  of  its  full  representa- 
tion in  the  Senate  over  considerable  periods  of  time. 

At  any  rate,  the  antipathy  to  the  old  plan  grew  apace, 
and  projects  for  changing  the  constitution  so  as  to  permit 
direct  election  came  to  the  front  in  the  closing  decades  of 
the  nineteenth  century.  Several  times  the  House  of  Repre- 
sentatives passed  by  the  requisite  two-thirds  vote  a  proposi- 
tion to  submit  such  an  amendment  to  the  states  for  their 


THE  SENATE:    ITS  ORGANIZATION  151 

approval,  but  the  instinct  of  self-preservation  led  the  Sen- 
ate to  refuse  concurrence.  Meanwhile,  some  of  the  states 
evolved  a  plan  by  which  they  virtually  secured  the  popular 
choice  of  their  senators  without  waiting  for  a  change  in  the 
constitutional  machinery.  The  general  features  of  this 
plan  were  as  follows :  whenever  the  term  of  a  senator  was 
about  to  expire  a  direct  primary  was  held  in  which  each 
political  party  chose  its  candidate  for  senator.  Candidates 
for  election  to  the  state  legislature  were  then  asked  by  the 
voters  to  pledge  their  support  to  the  people's  choice  at  the 
primary.  The  legislators  were,  of  course,  under  no  legal 
obligation  to  keep  such  preelection  pledges,  but  in  the 
main  they  did  so,  and  the  choice  of  the  majority  party  at 
the  primary  was  regularly  chosen  for  the  Senate  by  the 
majority  members  of  the  same  political  party  in  the  legis- 
lature. The  whole  proceeding  was  directly  contrary  to  the 
spirit  of  the  constitution  but  quite  within  the  letter  of  its 
requirements. 

In   1913  the   Seventeenth  Amendment  to  the  national  Cuimina- 
constitution  was  finally  adopted.     It  provided  that  here- 
after  senators  should  be  chosen  directly  by  the  voters  of  in  the 
the  several  states,  not  by  the  legislatures.     No  longer  was 
there  any  hesitation  about  snapping  the  ancient  link  between  ment. 
the  state  and  national  governments ;  the  danger  that  federal 
usurpation  would  extinguish  the  state  legislatures  had  long 
since  passed  away,  if,  indeed,  it  had  ever  had  any  real  exist- 
ence.    To-day,  therefore,  the  post  of  United  States  senator 
is  elective,  but  the  term  and  the  qualifications  of  senators 
remain  as  before.     A  senator  must  be  not  less  than  thirty 
years  of  age,  a  citizen  of  at  least  nine  years'  standing,  and 
at  the  time  of  his  election  an  inhabitant  of  the  state  which 
he  is  to  represent. 

But  while  the  term  of  senators,  as  has  been  said,  is  six 
years,  one-third  of  the  Senate's  membership  is  renewed 
every  two  years.  No  state  elects  both  its  senators  in  the 
same  year,  unless  some  unexpected  vacancy  should  occur  in 
one  of  the  senatorships.  The  choice  is  made  by  the  voters 
at  the  regular  state  election,  and  the  qualifications  for  voting 
are  the  same  as  those  required  at  the  election  of  representa- 
tives. When  a  vacancy  occurs  through  the  death,  disquali- 


152      THE  GOVERNMENT  OF  THE  UNITED  STATES 

fication,  or  resignation  of  a  senator  from  any  state,  the  gov- 
ernor issues  a  writ  for  a  special  election,  unless  a  regular 
polling  day  is  near  at  hand ;  and  the  state  legislature  may 
empower  the  governor  to  appoint  some  qualified  person  as 
senator  temporarily,  to  sit  until  this  election  is  held. 
Equality  of  The  Seventeenth  Amendment  made  no  change,  more- 
tion^iT  the"  over>  m  the  equal  representation  of  the  states,  although, 
Senate  must  with  the  present  great  disparity  of  population  among  the 
various  commonwealths,  this  feature  has  become  a  great 
anomaly.  Nevada,  with  about  100,000  population,  has 
two  senators,  while  New  York,  with  over  10,000,000,  has 
the  same  number.  Proportionally,  New  York  would  have 
two  hundred  senators.  But,  anomalous  or  not,  this  equality 
of  representation  was  an  essential  feature  of  a  bargain  made 
by  the  larger  with  the  smaller  states,  and  in  the  constitu- 
tion a  pledge  was  given  that  no  state  without  its  consent 
should  ever  be  deprived  of  its  equal  suffrage  in  the  Senate. 
That  pledge  will  of  course  be  respected.  No  matter  how 
widely  the  states  may  vary  in  area,  population,  or  resources, 
the  principle  of  equality  must  remain  so  far  as  the  upper 
branch  of  Congress  is  concerned.  This  is  one  respect 
in  which  the  constitution  is  practically  unamendable. 
Strictly  speaking,  of  course,  the  sovereignty  of  a  nation 
cannot  be  restricted  in  this  way ;  an  unamendable  con- 
stitution, or  part  of  a  constitution,  is  incompatible  with 
the  principle  of  ultimate  popular  sovereignty.  But  the 
pledge  was  made  in  good  faith  and  it  will  be  kept. 

The  Senate  of  the  United  States  holds  its  regular  sessions 
each  year  in  its  own  chamber  at  the  national  capital.  It 
may  also  be  called  by  the  President  in  special  session,  even 
when  the  House  of  Representatives  is  not  sitting.  This  is 
Organiza-  because  the  Senate,  as  will  be  pointed  out  in  the  next  chapter, 
Senate the  ^as  some  special  functions  which  are  not  shared  by  the 
other  branch  of  Congress,  the  trial  of  impeachments  and 
the  approval  of  treaties,  for  example.  By  the  terms  of  the 
constitution  the  Vice-President  of  the  United  States  is  the 
Senate's  presiding  officer,  and  he  possesses  the  customary 
powers  and  duties  of  that  post.  But  he  has  no  vote  except 
in  the  case  of  a  tie.  This  restriction  was  thought  prudent 
in  order  that  the  state  from  which  the  Vice-President 


THE  SENATE:    ITS  ORGANIZATION  153 

happens  to  come  would  not  regularly  have  three  votes  on 
all  questions.  In  the  earlier  days  of  the  Union,  when  the 
Senate  was  a  small  body  of  less  than  thirty  members,  tie- 
votes  were  not  uncommon ;  but  nowadays,  with  the  mem- 
bership increased  to  ninety-six,  the  Vice-President  rarely 
gets  the  opportunity  to  give  a  casting  vote.  In  the  absence 
of  the  Vice-President  the  Senate  elects  a  president  pro  tern- 
pore.  It  also  chooses  its  other  officers,  sergeant-at-arms, 
chaplain,  and  clerks. 

The  Senate  makes  its  own  rules  of  procedure.  On  the  its  pro- 
whole  its  rules  are  simple,  far  more  so  than  those  of  the  cedure* 
House.  They  require  that  every  bill  or  joint  resolution 
shall  receive  three  readings  before  being  passed,  but  the 
first  two  readings  are  merely  nominal  and  are  given  before 
the  bill  is  referred  to  the  appropriate  committee.  The  real 
contest,  if  any,  comes  upon  the  occasion  of  the  third  read- 
ing, when  amendments  may  be  offered  and  voted  upon. 
No  general  priority  is  given  in  the  Senate,  as  in  the  House, 
to  any  class  of  measures,  except  that  appropriation  bills 
have  a  certain  precedence.  Debate  in  the  Senate  is  not 
limited  by  the  rules  save  in  one  particular,  namely,  that  a 
senator  may  not  speak  more  than  twice  upon  the  same  ques- 
tion during  the  same  day  without  permission  of  the  Senate. 
This  great  freedom  of  debate  has  had  an  important  influence 
upon  the  work  of  the  chamber,  as  will  be  indicated  presently. 
While  most  of  the  daily  meetings  are  public  the  Senate 
meets  occasionally  in  "executive  session"  behind  closed 
doors.  This  is  usually  the  case  when  the  confirmation  of 
treaties  is  under  discussion. 

Like  all  great  legislative  bodies,  the  Senate  of  the  United  its  coin- 
States  does  a  large  part  of  its  work  through  standing  com-  mitt 
mittees,  of  which  it  has  more  than  sixty.  Some  of  them  are 
important  and  have  substantially  the  same  designation  and 
jurisdiction  as  the  chief  committees  in  the  other  chamber; 
but  most  of  them  have  only  perfunctory  work  to  do  and 
scarcely  ever  meet  at  all.  The  most  important  committees 
of  the  Senate  are  those  on  finance,  appropriations,  foreign 
relations,  the  judiciary,  and  interstate  commerce.  The  first 
two  have  the  consideration  of  all  measures  affecting  revenue 
and  expenditures  respectively;  the  next  two  owe  much  of 


154      THE  GOVERNMENT  OF  THE  UNITED  STATES 

their  importance  to  the  fact  that  all  the  President's  nomina- 
tions to  the  diplomatic  service  and  to  the  courts  are  referred 
to  them.  Likewise,  the  committee  on  foreign-  relations  con- 
siders all  treaties  before  they  are  discussed  by  the  Senate 
as  a  whole.  The  committee  on  interstate  commerce  has 
the  preliminary  consideration  of  all  measures  in  the  impor- 
tant field  of  administration  which  its  title  indicates.  Senate 
committees  contain  from  five  to  fifteen  members,  and  every 
senator  is  likely  to  be  assigned  to  one  or  more  of  them.  The 
Senate  also  meets  in  committee  of  the  whole  for  the  detailed 
consideration  of  measures. 
HOW  com-  The  selection  of  the  various  committees  is  made,  at  the 
beginning  of  each  Congress,  by  special  committees  chosen 
for  that  purpose  by  the  caucus  of  each  party.  These  special 
" committees  on  committees"  make  up  a  slate  or  list  of 
committee  assignments,  and  this  is  ordinarily  accepted  by 
the  Senate  without  change.  The  real  selections  are,  there- 
fore, made  by  the  committee  and  not  by  the  Senate  itself. 
Invariably,  of  course,  the  majority  party  in  the  Senate  is 
given  a  safe  numerical  margin  on  every  committee  of  im- 
portance. Each  committee  has  its  chairman,  who  is  named 
on  the  slate  in  the  same  way,  but  in  the  naming  of  these 
chairmen  it  is  usual  to  respect  the  principle  of  seniority 
in  service.  Senators  of  the  majority  party  who  have  had 
long  service,  especially  on  particular  committees,  are  usually 
given  the  important  chairmanships.  Every  committee 
has  its  "ranking  member,"  the  one  who  stands  next  in 
order  of  seniority  and  who  is  in  line  for  promotion  to  the 
chairmanship  when  a  vacancy  occurs,  provided  his  own 
party  retains  a  majority  in  the  Senate. 

Freedom  of       Mention  has  been  made  of  the  fact  that  in  the  Senate 
the  senate:    ^reedom  of  debate  is  unrestricted  to  an  extent  unknown  in 
its  merits      any  other  legislative  body  throughout  the  world.      There 
3ts>  is   no    closure  system   such  as  exists  in  England,  and  no 
guillotining  of  measures  by  shutting  off  discussion.     This 
plan  has,  of  course,  some  great  advantages  in  that  it  encour- 
ages spirited  and  continued  discussion ;   it  gives  a  minority 
a  fair  chance  to  fight  matters  to  a  finish  and  to  let  the 
country  know  the  facts.     But  like  all  such  unwonted  free- 
dom, this  latitude  in  debate  may  be  abused,  and  it  some- 


THE  SENATE:    ITS  ORGANIZATION  155 

times  has  been  abused.  It  affords  obstructionist  senators 
the  opportunity  to  talk  measures  to  death.  It  gives  a  fac- 
tious minority  the  opportunity  to  use  dilatory  tactics  and 
to  wear  out  the  patience  of  the  majority  by  conducting  a 
"filibuster/7  as  it  is  called.  When  the  Senate's  session  is 
drawing  to  its  close,  this  freedom  of  debate  sometimes  per- 
mits a  relatively  small  minority  to  defeat  any  measure  by 
resort  to  filibustering  tactics,  and  many  measures  have  per- 
ished in  this  way.  Indeed  it  can  fairly  be  said  that  legis- 
lation in  the  closing  days  of  the  Senate's  session  virtually 
requires  unanimous  consent.  Everyone  remembers,  for 
example,  the  way  in  which  "twelve  wilful  men"  in  a  total 
membership  of  ninety-six  endeavored  to  prevent  the  arming 
of  American  merchant  vessels  for  self-protection  in  the 
spring  of  1917  before  the  United  States  formally  declared 
war  on  the  German  government.  The  advisability  of 
restricting  the  freedom  of  debate  in  the  Senate  has  often 
been  discussed,  but  without  any  definite  results. 

Notwithstanding  the  incentive  afforded  for  long  and  Quality  of 
carefully  prepared  speeches,  the  Senate's  debates  do  not 
nowadays,  in  general,  reach  the  high  standards  of  seven  or 
eight  decades  ago,  the  days  of  Webster,  Clay,  Calhoun, 
Hayne,  and  Sumner.  Speeches  of  sterling  quality  in  sub- 
stance and  of  rhetorical  excellence  are  still  delivered  on 
occasions  when  some  matter  of  special  importance  or  solem- 
nity gives  the  opportunity ;  but  a  senator  no  longer  hopes 
to  convert  his  colleagues  by  eloquence.  Speeches  in  the 
Senate,  in  fact,  are  addressed  to  the  country  at  large  rather 
than  to  immediate  hearers.  By  the  way,  it  is  not  the 
practice  of  the  Senate,  as  it  is  of  the  House,  to  give  members 
"leave  to  print"  speeches  which  they  have  not  delivered 
or  "leave  to  extend"  a  few  remarks  into  many  pages  of 
the  printed  record. 

Yet  the  standards  of  debate  maintained  by  the  United  Comparison 
States  Senate  to-day  are  not  below  those  of  the  British 
House  of  Commons,  and  they  are  certainly  above  those  of 
legislative  bodies  in  other  lands.  Legislative  eloquence 
has  suffered  an  eclipse  in  our  time,  not  merely  in  this  country 
but  everywhere.  Party  lines  have  tightened,  so  that  only 
the  authorized  spokesmen  of  the  party  are  now  listened  to 


156      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Influence 
of  the 
party  spirit. 


The  caucus 
system  in 
the  Senate. 


Merits  and 
defects  of 
the  caucus. 


with  great  interest;  the  others  merely  repeat,  expound, 
and  amplify.  The  senator  who  is  merely  a  loyal  supporter 
of  his  party  programme  cannot  thrill  the  country  with  some- 
thing new  and  startling,  the  outcome  of  his  own  initiative 
and  reflection.  If  he  did,  he  would  no  longer  be  accounted 
a  loyal  party  man,  and  under  the  party  system  which  now 
rules  the  Senate  there  is  no  influential  place  for  any  one 
else. 

The  party  whip  cracks  frequently  in  the  Senate  as  in 
other  legislative  chambers.  Its  custodian  is  the  caucus. 
Each  party,  majority  and  minority,  has  its  own  caucus, 
made  up  solely  of  its  own  members,  and  at  these  meetings 
the  action  of  each  group  is  decided  upon.  The  majority 
senators,  whether  Republicans  or  Democrats,  agree  as  to 
the  measures  which  they  will  support ;  the  minority  mem- 
bers, on  the  other  hand,  map  out  their  counter-operations, 
deciding  whether  to  oppose,  or  to  offer  amendments,  or  to 
filibuster,  or  to  let  measures  go  through.  Only  the  majority 
party,  however,  uses  the  caucus  regularly.  Every  senator 
who  attends  his  party  caucus  is  bound  to  abide  by  any  deci- 
sion which  the  caucus  may  make,  bound  by  a  merely  moral 
obligation,  to  be  sure,  but  that  is  enough  for  all  practical 
purposes.  Thus  it  comes  to  pass  that  when  a  majority 
caucus  has  pledged  its  members  to  support  any  measure,  the 
ultimate  issue  is  virtually  sealed.  The  majority,  being 
pledged  by  caucus  resolution  to  stand  together,  can  insure 
its  enactment.  In  the  Senate,  as  in  the  House,  vigorous 
protests  against  the  caucus  system  have  been  voiced  from 
time  to  time,  and  there  is  throughout  the  country  a  good 
deal  of  prejudice  against  caucus  legislation ;  but  the 
system  provides  the  only  way  in  which  responsibility  for 
legislation,  under  a  system  of  divided  powers  and  partisan 
government,  can  be  adequately  centralized.  When  a 
majority  caucus  pledges  its  members,  this  means  that  the 
party  is  ready  to  take  the  entire  responsibility  for  some 
action.  The  proposal  then  becomes  what  in  England  would 
be  termed  a  "government  measure."  Reformers  are  con- 
tinually urging  that  the  Senate  should  replace  "irresponsible 
party  action  in  a  secret  conclave"  by  some  form  of  "public, 
personal,  and  individual  responsibility";  but  the  whole 


THE  §ENATE:    ITS  ORGANIZATION  157 

history  of  representative  law-making  proves  that  no  well- 
ordered  legislative  programme  is  ever  carried  through  by 
placing  undue  emphasis  upon  the  duty  of  every  legislator  to 
run  off  on  his  own  tangent.  The  legislative  caucus,  or  some- 
thing akin  to  it,  is  a  fixture  in  all  countries  having  systems 
of  free  government.  It  is  not,  as  some  imagine,  a  vicious 
instrumentality  which  the  politicians  of  America  have 
devised  for  their  own  benefit. 

The  Senate  has  the  usual  rights  of  a  legislative  body,  Privileges 
and  its  members  enjoy  the  customary  immunities.  They  ^itteso 
are  privileged  from  arrest  on  civil  process  during  their  senators, 
attendance,  or  in  going  to,  or  in  returning  from,  the  sessions. 
For  what  a  senator  may  say  in  the  course  of  a  debate,  more- 
over, the  constitution  provides  that  he  "shall  not  be  ques- 
tioned in  any  other  place"  ;  in  other  words,  he  is  not  subject 
to  the  ordinary  law  of  libel  as  administered  by  the  courts.  • 
But  the  Senate  itself  can  punish  a  member  for  disorderly 
conduct  and  by  a  two-thirds  vote  may  even  expel  him.  It 
may  compel  the  attendance  of  absent  senators,  may  con- 
duct investigations,  may  summon  witnesses,  and,  in  the 
event  of  their  refusal  to  appear  or  to  answer  questions, 
may  punish  them  for  contempt.  It  has  the  right  to  deter- 
mine the  qualifications  of  its  own  members.  It  may  do 
more  than  merely  examine  into  these  formal  qualifications, 
for  it  may  investigate  the  question  whether  any  senator 
has  been  properly  chosen,  whether  bribery  or  other  repre- 
hensible means  have  been  employed  to  influence  his  election. 
It  has  the  power  to  declare  an  election  void  if  reasons  for 
so  doing  should  appear.  A  senator  is  not,  however,  a  "  civil 
officer  of  the  United  States,"  as  defined  by  the  constitution, 
and  hence  may  not  be  impeached  before  the  Senate  itself.1 

In  political  influence  and  prestige  the  Senate  remained,  The  place 
during  the  early  years  of  the  Union,  quite  inferior  to  the  gft^ei 
House.     The  latter  took  the  initiative  in  legislation  of  all  American 
kinds,  the  Senate  devoting  more  time  to  revising  the  meas-  pplitical 
ures  which  came  up  to  it  from  the  lower  chamber  than  in 
originating  bills  of  its  own.     It  was  a  small  body,  sitting 
behind  closed  doors,  and  regarded  by  the  public  as  a  private 
conference  of  provincial  notables  in  which  there  was   no 
1  See  below,  p.  170. 


158      THE  GOVERNMENT  OF  THE  UNITED  STATES 

(a)  from  opportunity  for  the  exercise  of  brilliant  political  talents.1 
to  In  the  original  Senate  Chamber  (now  occupied  by  the 
Supreme  Court)  there  were  no  seats  installed  for  the  public. 
Madison,  on  one  occasion,  remarked  that  being  desirous 
of  increasing  his  reputation  as  a  statesman,  he  could  not 
afford  to  accept  a  seat  in  the  Senate.  The  centre  of  political 
gravity  during  this  period,  which  extended  from  1789  to 
about  1830,  was  lodged  in  the  House. 

(6)  from  But  with  the  Jacksonian  revolution  this  situation  under- 

1870.  °  went  a  change.  The  abolition  of  the  congressional  nominat- 
ing caucus,  which  the  House  through  sheer  weight  of  num- 
bers always  controlled,  reduced  the  influence  of  that  body.2 
The  Senate  began  to  come  into  its  own.  Men  of  great 
power  and  prestige  came  into  its  membership  during  the 
three  decades  which  intervened  between  the  inauguration 
.  of  Jackson  and  the  Civil  War.  The  outstanding  political 
questions  of  this  epoch  were  connected  mainly  with  the 
subject  of  state  rights,  and  in  these  the  Senate,  as  the  cham- 
ber representing  the  interests  of  the  several  states,  became 
the  great  forum  of  discussion.  Controversies  and  compro- 
mises relating  to  the  admission  of  new  states  centred 
about  the  ultimate  control  of  the  Senate  by  the  pro-slavery 
or  anti-slavery  sections  of  the  Union.  The  permanence  of 
its  organization,  the  longer  terms  for  which  its  members 
were  chosen,  its  smaller  and  more  wieldy  size,  the  reputation 
for  skill  and  eloquence  in  debate  which  it  developed  —  these 
things  helped  to  make  the  Senate  the  real  battle-ground 
upon  which  the  great  national  issues  of  the  ante-bellum  era 
were  fought  out.  Both  at  home  and  abroad  the  Senate 
gained  a  name  for  talent,  dignity,  and  aggressiveness.  So 
quickly  and  so  completely  was  the  balance  of  power  shifted 
from  the  lower  to  the  upper  chamber  that  a  distinguished 
French  student  of  American  democracy,  writing  in  the 
middle  thirties,  was  impressed  by  the  wide  discrepancy  be- 
tween the  two.3  The  great  debates  which  preceded  the  War 

1  Henry  Jones  Ford,  The  Rise  and  Growth  of  American  Politics  (N.  Y., 
1911),  pp.  260-261. 

2  Cf.  below,  p.  332. 

1  "  On  entering  the  House  of  Representatives  at  Washington,  one  is 
struck  by  the  vulgar  demeanor  of  that  great  assembly.  Often  there  is 
not  a  distinguished  man  in  the  whole  number.  Its  members  are  almost 


THE  SENATE:    ITS  ORGANIZATION  159 

of  1812  took  place  in  the  House ;  but  the  oratorical  battles 
which  foreshadowed  the  Civil  War  were  fought  in  the  Sen- 
ate. Its  zenith  of  prestige  was  reached  at  the  close  of  the 
Civil  War  when  it  sought,  under  Andrew  Johnson,  to  usurp 
a  share  of  the  President's  executive  authority  and  ended 
by  almost  removing  him  from  office  by  conviction  on  im- 
peachment. No  upper  chamber  in  any  other  country 
matched  the  Senate  of  the  United  States  in  influence  and 
power  at  that  point. 

Then  came  the  inevitable  reaction.  By  its  undue  em-  (c)  since 
phasis  upon  "senatorial  courtesy"  and  by  its  disposition  * 
to  hamper  the  hands  of  the  executive  in  foreign  affairs  the 
Senate  overreached  itself.  Grant  and  Garfield  each  took 
a  hand  in  clipping  its  wings,  the  former  by  rebuffing  its 
claim  to  any  control  over  removals  from  office;  the  latter 
by  defying  its  rule  of  courtesy.  Questions  of  economic 
policy,  moreover,  now  came  to  the  front,  and  in  its  handling 
of  these  the  sectional  spirit  of  the  upper  chamber  became 
all  too  plain.  The  growth  of  huge  corporations  and  of 
great  fortunes  brought  new  elements  into  its  membership, 
senators  who  owed  their  selection  either  to  personal  wealth 
or  to  the  fact  that  they  were  well  backed  from  opulent 
sources.  The  ranks  of  those  who  owed  their  seats  to  intellec- 
tual eminence  or  skill  in  debate  or  long  political  experience 
grew  thinner  as  the  years  went  by.  The  Senate  began  to 
stamp  itself  upon  the  public  imagination  as  the  strong- 
hold of  vested  economic  interests  and  the  foe  of  popular 
rights. 

Other  things,  moreover,  contributed  to  the  decline 
of  the  Senate's  prestige  during  the  closing  quarter  of  the 
nineteenth  century,  particularly  the  frequent  scandals  con- 
nected with  the  choice  of  senators  by  the  legislatures  in 
various  states  and  the  reputed  alliance  between  certain 

all  obscure  individuals.  ...  At  a  few  yards  distance  is  the  door  of  the 
Senate,  which  contains  within  small  space  a  large  proportion  of  the  cele- 
brated men  of  America.  Scarcely  an  individual  is  to  be  seen  in  it  who  has 
not  had  an  active  and  illustrious  career ;  the  Senate  is  composed  of  elo- 
quent advocates,  distinguished  generals,  wise  magistrates,  and  statesmen 
of  note,  whose  arguments  would  do  honor  to  the  most  remarkable  parlia- 
mentary debates  of  Europe."  —  ALEXIS  DE  TOCQUEVILLE,  Democracy  in 
America  (2  vols.,  London,  1835-1840),  I,  ch.  xiii. 


160      THE  GOVERNMENT  OF  THE  UNITED  STATES 

senators  and  great  railroads  or  industrial  corporations.  The 
great  and  dominating  figures  of  the  golden  age  disappeared, 
one  by  one,  and  the  new  senators  who  came  to  take  their 
seats  did  not  share  to  a  like  degree  the  public  confidence. 
During  the  past  twenty-five  years  the  senatorial  firmament 
has  contained  very  few  stars  of  the  first  magnitude.  Yet 
the  Senate  has  relaxed  its  grip  very  slowly,  and  even  yet 
it  retains  a  large  portion  of  its  earlier  strength  and 
prowess. 

wm  the  By  some  this  deterioration  in  personnel  and  in  influence 

Selection  nas  keen  attributed  to  the  old  method  of  choosing  senators, 
improve  and  the  prediction  has  been  made  that,  under  the  new  scheme 
the  Senate?  Qf  pOpU}ar  election  provided  by  the  Seventeenth  Amend- 
ment, the  Senate  will  soon  regain  its  unquestioned  hegem- 
ony. It  is  yet  too  early  to  pass  judgment  upon  the 
soundness  of  this  expectation,  but  the  lapse  of  a  few  years 
has  given  no  tangible  indication  that  it  will  ever  be  fulfilled. 
Popular  election,  when  used  in  connection  with  the  direct 
primary,  has  not  shown  itself  in  any  field  of  American  po- 
litical life  to  be  a  certain  method  of  securing  for  the  public 
service  men  of  high  intelligence,  sound  judgment,  or  rugged 
integrity.  The  new  plan  is  not  likely  to  do  worse  than  the 
old,  perhaps,  but  the  hope  for  a  marked  improvement  leans 
upon  a  slender  reed. 

The  many-  "It  is  very  difficult  to  form  a  just  estimate  of  the  Senate 
Senate.  °^  ^e  United  States.  No  body  has  been  more  discussed  ; 
no  body  has  been  more  misunderstood  and  traduced.  There 
was  a  time  when  we  were  lavish  in  spending  our  praises  upon 
it.  We  joined  with  our  foreign  critics  and  appreciators 
in  speaking  of  the  Senate  as  one  of  the  most  admirable, 
as  it  is  certainly  one  of  the  most  original,  of  our  political 
institutions.  In  our  own  day  we  have  been  equally  lavish 
of  hostile  criticism.  We  have  suspected  it  of  every  malign 
purpose,  fixed  every  unhandsome  motive  upon  it,  and  at 
times  almost  cast  it  out  of  our  confidence  altogether.  The 
fact  is  that  it  is  possible  in  your  thought  to  make  almost 
anything  you  please  out  of  the  Senate.  It  is  a  body  vari- 
ously compounded,  made  many-sided  by  containing  many 
elements,  and  a  critic  may  concentrate  his  attention  upon 
one  element  at  a  time  if  he  chooses,  make  the  most  of  what 


THE  SENATE:    ITS  ORGANIZATION  161 

is  good  and  put  the  rest  out  of  sight,  or  make  more  than  the 
most  of  what  is  bad  and  ignore  everything  that  does  not 
chime  with  his  thesis  of  evil.  The  Senate  has,  in  fact,  many 
contrasted  characteristics,  shows  many  faces,  lends  itself 
easily  to  no  confident  generalization."  1 

1  Woodrow   Wilson,    Constitutional   Government   in   the    United  States 
(N.  Y.;  1911),  p.  112. 


CHAPTER  XI 


The  Senate 
an  execu- 
tive as 
well  as  a 
legisla- 
tive body. 


Is  this  con- 
sistent 
with  the 
principle 
of  separa- 
tion of 
power? 


THE   SENATE  :    ITS   FUNCTIONS 

THE  United  States  Senate  was  designed  to  be  more  than 
a  branch  of  Congress  and  the  right  arm  of  the  legislative 
power.  It  was  intended  to  serve,  in  some  degree,  as  an 
executive  council  as  well.  If  the  framers  of  the  constitution 
made  no  regular  provision  for  any  body  like  the  English 
Privy  Council,  it  was  possibly  because  they  felt  that  they 
had  assigned  to  the  Senate  the  most  important  things  upon 
which  it  was  desirable  that  the  President  should  have 
advice  and  assistance.  Washington,  when  he  became 
President,  fully  expected  that  the  Senate  would  act  as  an 
advisory  council,  deliberating  with  him  on  treaties  and  ap- 
pointments. The  Senate  at  this  time  consisted  of  twenty- 
eight  members  only,  so  that  it  was  not  too  large  a  body  for 
informal  and  confidential  discussion.  At  any  rate,  it  was 
Washington's  practice,  in  the  earlier  years  of  his  adminis- 
tration, to  attend  in  person  whenever  executive  sessions 
of  the  Senate  were  held  for  the  consideration  of  treaties. 
But  the  senators  did  not  relish  this  practice ;  they  felt  that 
it  was  a  restraint  upon  free  discussion,  and  soon  adopted 
the  plan  of  postponing  all  matters  laid  before  them  by  the 
President  until  they  could  be  taken  up  in  his  absence.  In 
time  there  developed,  accordingly,  the  practice  of  merely 
sending  appointments  and  treaties  in  formal  written  com- 
munications, leaving  the  Senate  to  make  up  its  mind  with- 
out presidential  assistance. 

When  Alexander  Hamilton  wrote  of  the  executive  power 
as  being  divided  between  the  President  and  the  Senate, 
he  had  in  mind,  doubtless,  the  great  executive  functions 
which  the  constitution  gave  to  the  latter,  namely,  those 
of  confirming  appointments  and  of  approving  treaties. 

162 


THE  SENATE:    ITS  FUNCTIONS  163 

* 

The  idea  of  vesting  executive  functions  to  any  extent  in 
the  upper  chamber  of  Congress  came,  no  doubt,  from  colo- 
nial experience,  for  in  several  of  the  colonies  the  same  body 
which  advised  the  governor  formed  a  branch  of  the  legis- 
lature. On  the  whole  this  scheme  had  served  with  a  reason- 
able degree  of  satisfaction  because  the  governor's  council  in 
colonial  days  had  given  stability,  character,  and  continuity 
to  the  whole  administration.  It  was  no  great  innovation, 
at  any  rate,  to  bestow  upon  the  Senate  some  special  functions 
of  an  executive  nature. 

The  constitution  provides  that  appointments  made  by  Special 
the  President  shall  be  subject  to  the  "advice  and  consent"  ^thf118 
of  the  Senate.     The  appointing  power  is  one  of  the  greatest  Senate : 
of  all  executive  functions,  too  portentous,  it  was  felt,  to  W  the  con- 
be  given  without  restraint  to  the  President  alone,  lest  he  0fTppoint- 
permanently  intrench  himself  in  office  by  filling  the  great 
offices  of  state  with  his  own  minions.     Although  the  Presi- 
dent is  commonly  spoken  of  as  appointing  a  justice  of  the 
Supreme  Court  or  an  ambassador,  his  action  in  reality  isy 
merely  that  of  nominating.     When  he  desires  to  fill  any 
office,  the  President  sends  a  nomination  to  the  Senate,  and 
this  nomination,  after  being  announced,  is  referred  to  the 
appropriate  committee.     If  it  be  the  nomination  of  a  federal 
judge,  it  goes  to  the  judiciary— committee ;    if  that  of  an 
ambassador,  to  the  committee  on  foreign  relations.     These 
committees    may,  and  often    do,  assign    such  presidential 
nominations  to  special  sub-committees  for  investigation  as 
to  the  qualifications  of  the  person  nominated.     If  there  are 
objections    to   the    nominee,   the    committee    or  sub-com- 
mittee hears  such  objections,  and  in  due  course  a  report, 
favorable   or  unfavorable,  is  made  to   the  whole   Senate. 
Then  comes  the  vote  to  consent  or  to  refuse  consent.     The 
Senate  is  not  bound,  of  course,  to  follow  the  recommenda- 
tions of  its  committees  on  such  matters;    but  it  does  so 
except  in  unusual  cases.     If  consent  is  refused,  the  same 
nomination  may  be  submitted  a  second  time,  but  this  is 
not  commonly  done. 

Rejections  have  not  been  uncommon,  and  they  have 
at  times  developed  considerable  bitterness,  but  the  vast 
majority  of  presidential  nominations  are  confirmed  with 


164      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Recess 
appoint- 
ments. 


(2)  the 
approval 
of  treaties. 


little  or  no  hesitation.  Much  depends,  of  course,  upon 
whether  the  Senate  contains  a  majority  representing  the 
same  political  party  as  the  President,  and  the  general  tem- 
per of  the  Senate  with  reference  to  appointments  has  changed 
from  time  to  time.  It  is  now  pretty  well  conceded,  however, 
that  the  responsibility  for  selecting  appointees  rests,  and 
was  intended  to  rest,  chiefly  upon  the. President's  shoulders 
and  that  the  Senate  should  not  impair  this  clear  responsi- 
bility by  insisting  upon  a  share  of  the  initiative.  Hence 
the  senators  do  not  ordinarily  reject  nominations  without 
good  reason.  A  bare  majority  is  needed  to  confirm  nomi- 
nations sent  to  the  Senate  by  the  President. 

What  happens  if  a  post  becomes  vacant  and  the  Presi- 
dent desires  to  fill  it  when  the  Senate  is  not  in  session  ?  In 
that  case  the  President  may  make  what  is  known  as  a 
"recess  appointment."  The  recess  appointee  assumes  office 
at  once  and  holds  it  until  the  Senate  has  an  opportunity  to 
confirm  him  as  the  regular  incumbent.  If,  however,  the 
Senate  declines  to  confirm  him,  he  ceases  to  hold  the  office 
whenever  the  Senate's  session  comes  to  an  end.  Then, 
of  course,  the  President  can  bestow  upon  the  same  individual 
another  recess  appointment  if  he  chooses  to  do  so.  It 
has  occasionally  happened  that  by  a  succession  of  these 
recess  appointments  an  office  has  been  kept  occupied,  de- 
spite the  non-concurrence  of  the  Senate,  for  several  years. 

The  second  executive  power  shared  by  the  Senate  is  that 
of  approving  treaties.1  In  dealing  with  this  matter  the 
framers  of  the  constitution  faced  a  dilemma.  If  they  gave 
the  President  sole  power  to  make  treaties,  they  would  endow 
him  with  the  absolute  control  of  foreign  affairs  including 
the  power  to  make  alliances,  and  they  were  not  prepared 
to  face  public  opinion  with  a  proposal  so  startling.  On  the 
other  hand,  they  realized  that  in  the  making  of  treaties, 
as  John  Jay  phrased  it,  "perfect  secrecy  and  immediate 
despatch  are  sometimes  requisite."  And  these  requisites, 
it  was  easy  to  see,  could  scarcely  be  had  if  the  President 

1  S.  B.   Crandall,    Treaties,    Their  Making  and  Enforcement   (2d  ed., 
Washington,  1916),  and  C.  H.  Butler,  The  Treaty  Making  Power  of  the 
United  States  (N.  Y.,  1902). 

2  The  Federalist,  No.  64. 


THE  SENATE:    ITS  FUNCTIONS  165 

were  .forced  to  submit  his  negotiations,  step  by  step,  to 
any  considerable  body  of  men.  In  the  end  it  was  decided 
to  take  chances  with  the  less  dangerous  of  the  two  alterna- 
tives and  to  stipulate  that  the  President  should  make  treaties 
"with  the  advice  and  consent  of  the  Senate,  provided  two- 
thirds  of  the  senators  concur." 

In  treaty  negotiations,  as  in  the  selection  of  persons  for  How  the 
appointment  to  office,  the  Senate's  advice  is  not  asked  ^S1t^eent 
in  any  formal  way,  although  on  some  occasions  the  President  senators 
has  sounded  the  Senate  before  actively  beginning  treaty 
negotiations.  In  any  event  a  President  rarely  goes  ahead 
and  definitely  concludes  the  terms  of  an  important  treaty 
without  making  sure  of  his  ground.  He  is  likely  to  keep 
in  touch  with  the  leaders  of  the  Senate,  especially  with  the 
chairman  of  its  committee  on  foreign  relations,  and  through 
them  to  ascertain  in  advance  what  the  action  of  the  Senate 
is  likely  to  be  on  any  treaty  that  may  be  framed.  No 
President  likes  to  carry  treaty  negotiations  to  a  conclusion, 
only  to  have  the  Senate  reject  his  work.  When  it  is  borne 
in  mind,  moreover,  that  two-thirds  of  the  senators  must 
give  assent,  the  difficulty  of  securing  this  approval  in  all 
cases  is  by  no  means  negligible.  Hence  the  President  is 
constrained  to  unfold  his  plans  in  part  at  least  to  influ- 
ential senators,  bearing  in  mind  always  that  the  Senate 
is  very  jealous  of  its  share  in  the  treaty-making  prerogative 
and  that  a  relatively  small  group  of  senators  can  completely 
spoil  the  fruit  of  his  negotiations.  While  it  is  true  that  a 
President  does  not  ask  the  Senate's  advice,  it  is  equally 
true  that  he  cannot  profitably  ignore  that  body  until  the 
time  comes  to  send  the  treaty  to  it  for  ratification.  Many 
instances  of  this  consultation  and  of  its  successful  outcome 
might  be  given,  and  many  illustrations,  likewise,  of  the 
failure  of  a  treaty  to  be  ratified  by  reason  of  a  President's 
disinclination  to  act  in  harmony  with  the  ascertained  con- 
victions of  Senate  leaders.  President  Grant's  treaty  for 
the  annexation  of  San  Domingo  in  1870  was  rejected  by  the 
Senate  because  Charles  Sumner,  the  chairman  of  the  com- 
mittee on  foreign  relations,  fought  it  to  defeat. 

The  negotiations  which  precede  the  making  of  a  treaty 
with  any  foreign  country  are  conducted  on  behalf  of  the 


166      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  way  a 
treaty  is 
made. 


n 


Legal  status 
of  a  treaty. 


The 

Senate's 
power  to 
amend  a 
treaty. 


United  States  by  the  Department  of  State.  This  may  be 
done  either  at  Washington  or  at  a  foreign  capital,  the 
American  ambassador  or  minister  acting  as  intermediary 
in  the  latter  case.  After  the  general  provisions  have  been 
informally  agreed  upon,  the  formal  document  is  prepared 
and  signed  by  diplomatic  representatives  of  the  countries 
concerned.  At  this  stage  the  treaty  goes  to  the  Senate 
for  approval.  If  approval  is  given,  the  treaty  is  formally 
ratified  and  goes  into  force,  but  if  the  Senate's  approval  is 
refused,  the  whole  proceeding  comes  to  naught.  Every 
form  of  international  agreement  to  which  the  United  States 
is  a  party  must  be  submitted  to  the  Senate  in  this  way. 

A  treaty,  when  duly  approved  and  ratified,  becomes, 
j^g  the  constitution,  the  supreme  law  of  the  land,  "and 
the  judges  of  every  state  are  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding." No  state  may  make  a  treaty  nor  may  it 
enforce  any  law  which  contravenes  the  terms  of  a  treaty 
made  by  the  national  government.  The  national  govern- 
ment, moreover,  may  conclude  treaties  covering  matters 
on  which  Congress  would  have  no  right  to  pass  laws.  The 
right  of  foreign  citizens  to  acquire  and  hold  property  in  the 
United  States,  for  example,  is  a  proper  subject  of  a  treaty 
provision,  although  the  regulation  of  land-holding  in  any 
state  does  not  come  within  the  legislative  jurisdiction  of  Con- 
gress. If  a  treaty  and  a  state  law  or  state  constitution  are 
in  conflict,  the  treaty  prevails.  If,  however,  a  treaty  conflicts 
with  a  national  law,  whichever  is  later  in  time  will  control, 
and  the  same  is  true  as  between  two  conflicting  treaties. 

May  the  Senate  amend  a  treaty  laid  before  it  by  the  Presi- 
dent? It  may,  and  sometimes  has  done  so.  In  that  event, 
however,  the  negotiations  with  the  other  country  must 
be  reopened  in  order  that  its  consent  to  the  amendments 
may  be  obtained.  But  it  sometimes  happens  that  the 
nature  of  the  Senate's  amendments  precludes  any  such 
agreement  altogether.  Thus  the  general  arbitration  treaty 
of  1897  was  thwarted  by  hostile  amendments.  Not  only 
may  the  Senate  amend  a  treaty,  but  it  may  by  resolution, 
either  of  itself  or  jointly  with  the  House  of  Representatives, 
request  the  President  to  open  negotiations  on  any  matter 


THE  SENATE:    ITS  FUNCTIONS  167 

with  a  foreign  power.     The  President  is  of  course  under 
no  legal  obligation  to  comply. 

Strictly  speaking,  the  House  of  Representatives  has  Relation 
nothing  to  do  with  treaties,  but  occasions  may  arise  in  which  ^OUge  ^ 
action  on  its  part  is  virtually  necessary  to  give  a  treaty  treaties, 
effect.  No  money  can  be  appropriated  for  any  purpose, 
no  laws  passed,  no  changes  made  in  the  tariff,  for  example, 
without  affirmative  action  on  the  part  of  the  House.  Trea- 
ties sometimes  include  stipulations  that  money  will  be  paid, 
or  that  reciprocity  in  tariff  matters  will  be  granted  by  the 
United  States.  The  treaty  with  Russia  whereby  the  United 
States  purchased  Alaska  in  1867  is  an  example  ;  likewise  the 
treaty  with  Spain  in  1898,  which  provided  for  the  payment  of 
twenty  million  dollars  in  connection  with  the  transfer  of 
the  Philippine  Islands.  What  if  the  House  of  Representa- 
tives had  stood  on  its  prerogative  and  refused  to  join  in 
appropriating  the  money  stipulated  in  the  terms  of  these 
treaties?  That  is  a  very  old  constitutional  question,  for 
it  was  raised  and  discussed  in  connection  with  the  Louisiana 
Purchase  of  1803,  and  it  has  been  debated  several  times 
since,  but  it  is  still  an  unanswered  question  because  the 
House  has,  thus  far,  never  failed  to  do  its  part.  The  House 
has  on  more  than  one  occasion  asserted  its  right  to  refuse, 
but  it  has  made  no  actual  refusal.  The  best  legal  opinion 
inclines  to  the  view  that  while  the  refusal  of  the  House  to 
do  its  part  in  carrying  out  the  provisions  of  a  treaty  after 
such  agreement  had  been  approved  by  the  Senate  and 
finally  ratified  would  place  the  nation  in  an  awkward  pre- 
dicament, it  would  none  the  less  be  within  the  constitutional 
privilege  of  the  House  to  take  that  stand. 

It  is  often  said  that  treaty-making  arrangements  such  The 
as  exist  in  the  United  States  would  be  intolerable  in  any  joking 
European   land.     In   England   treaties   are   made   by   the  power  and 
Secretary  of  State  for  Foreign  Affairs  without  the  necessity 
of  submitting  them  to  any  body  outside  the  Cabinet.     In 
the  various  countries  of  Continental  Europe  certain  treaties 
must  be  submitted  to   the  legislative  chambers,  but  not 
the  ones  which  require  secrecy.     Alliances  and  obligations 
of  that    nature    have    been    made    and    assumed    by    the 
chief  executive  alone.     Hence  it  is  that  in  things  of  the 


168      THE  GOVERNMENT  OF  THE  UNITED  STATES 

most  transcendent  importance,  in  things  which  are  most 
likely  either  to  bring  on  wars  or  to  prevent  them,  the  direct 
representatives  of  the  people  in  European  countries  have  had 
no  immediate  influence  at  all.  Bismarck,  the  Iron  Chan- 
cellor of  the  German  Empire,  once  spoke  of  public  opinion 
as  "the  great  enemy  of  efficient  diplomacy.'7  If  that  be 
true,  American  diplomacy  can  never  be  very  efficient,  for 
public  opinion  must  always  be  a  controlling  factor  in  it. 
From  a  European  point  of  view  the  necessity  of  secrecy 
in  the  making  of  treaties  has  been  taken  for  granted,  and 
secret  diplomacy  has  been  the  tap-root  of  that  continent's 
overwhelming  catastrophes.  The  men  of  1787  were 
prudent  in  their  day  and  prophets  in  their  generation 
when  they  raised  in  the  New  World  an  insuperable  barrier 
against  anything  of  the  sort.  At  times,  no  doubt,  the 
requirement  that  treaties  must  go  before  the  Senate  has 
been  a  stumbling-block.  It  has  occasionally  prevented  the 
President  from  making  a  good  bargain.  It  has  sometimes 
compelled  him  to  enter  a  diplomatic  tussle  with  one  hand 
tied  behind  his  back.  When  John  Hay  was  Secretary  of 
State,  he  fumed  against  it  as  the  weakest  feature  of  Amer- 
ica's whole  governmental  scheme.  But  it  has  been  on 
the  whole  a  salutary  provision.  It  has  held  rash  Presidents 
in  bounds.  It  has  kept  the  nation  on  its  course  for  one 
hundred  and  thirty  years  without  a  single  entangling 
alliance.  Of  no  other  great  country  can  that  be  said. 
(3)  the  The  Senate,  as  the  constitution  declares,  has  "the  sole 

trjTim-*0  power  to  try  all  impeachments. "  Several  important  ques- 
peach-  tions  arise  with  respect  to  the  scope  and  incidents  of  this 
impeachment  power.  How  did  this  process  of  impeach- 
ment originate?  Why  did  the  framers  of  the  constitution 
establish  it  in  the  United  States  ?  Who  may  be  impeached, 
for  what  offences,  and  what  are  the  penalties  in  the  event 
of  conviction?  Does  the  procedure  in  impeachments  differ 
from  that  of  an  ordinary  trial  by  jury  ?  And  to  what  extent 
has  the  impeaching  power  been  used  in  the  national  govern- 
ment of  this  country  ?  1 

1  One  of  the  best  general  surveys  of  this  whole  subject  is  that  contained 
in  Roger  Foster's  Commentaries  on  the  Constitution  of  the  United  States 
(Boston,  1895),  pp.  505-632. 


THE  SENATE:    ITS  FUNCTIONS  169 

The  impeachment  is  of  English  origin.  It  dates  back  its  origin, 
into  mediaeval  times,  and  for  many  centuries  before  the 
development  of  Cabinet  responsibility  it  afforded  the  only 
means  whereby  any  minister  of  the  crown  could  be  brought 
to  account  by  the  House  of  Commons.  The  Commons 
preferred  the  charges;  the  House  of  Lords  heard  the  evi- 
dence and  gave  its  decision.  Many  high  executive  officials 
who  used  their  power  oppressively  were  brought  up  with 
a  sharp  turn  in  this  way.  An  impeachment,  however, 
should  be  clearly  distinguished  from  the  enactment  of  a 
"bill  of  attainder/'  which  was  a  way  of  condemning  men 
to  death  by  ordinary  legislative  process,  without  formu- 
lating any  definite  charges  or  giving  them  any  form  of  trial. 
Bills  of  attainder  are  prohibited  by  the  constitution  of  the 
United  States,  and  they  have  long  since  become  obsolete  in 
England.  The  impeachment  procedure,  on  the  other  hand, 
commended  itself  to  the  pioneers  of  the  American  political 
system  as  a  necessary  safeguard  against  the  exercise  of 
arbitrary  power.  They  found  difficulty,  however,  in  deter- 
mining just  how  the  English  impeachment  system  could 
best  be  adapted  to  the  needs  of  a  purely  representative 
government.  "A  well-constituted  court  for  the  trial  of 
impeachments,"  declared  Hamilton,  "is  an  object  not 
more  to  be  desired  than  difficult  to  be  obtained  in  a  govern- 
ment wholly  elective.  The  subjects  of  its  jurisdiction  are 
those  offences  which  proceed  from  the  misconduct  of  public 
men,  or,  in  other  words,  from  the  abuse  or  violation  of  some 
public  trust.  They  are  of  a  nature  which  may  with  peculiar 
propriety  be  denominated  political,  as  they  relate  chiefly 
to  injuries  done  to  the  society  itself.  The  prosecution  of 
them,  for  this  reason,  will  seldom  fail  to  agitate  the  passions 
of  the  whole  community,  and  to  divide  it  into  parties  more 
or  less  friendly  or  inimical  to  the  accused.  ...  In  such 
cases  there  will  always  be  the  greatest  danger  that  the 
decision  will  be  regulated  more  by  the  comparative  strength 
of  parties,  than  by  the  real  demonstrations  of  innocence 
or  guilt."  1 

For  this  reason  it  was  suggested  that  the  impeachment 
power  should  be  given  to  the  Supreme  Court,  or  to  the 
1  The  Federalist,  No.  65. 


170      THE  GOVERNMENT  OF  THE  UNITED  STATES 

Supreme  Court  and  the  Senate  sitting  together.  But  there 
were  great  practical  objections  to  both  these  alternatives. 
Would  it  be  wise,  for  example,  to  leave  the  duty  of  passing 
judgment  upon  the  President  to  judges  whom  he  had  him- 
self appointed?  So  the  convention  decided  to  follow  the 
traditional  English  practice  of  allowing  the  lower  house 
to  prefer  the  charges  and  the  upper  house  to  determine 
them.  Its  members  were  well  aware  that  this  was  by  no 
means  an  ideal  arrangement.  But  if  mankind,  as  one  of 
the  delegates  sagaciously  expressed  it,  "were  to  agree  upon 
no  institution  of  government  until  every  part  of  it  had  been 
adjusted  to  the  most  exact  standard  of  perfection,  society 
would  soon  become  a  general  scene  of  anarchy,  and  the 
world  a  desert." 
Who  may  Who  may  be  impeached  ?  Only  the  "President,  Vice- 

im  eached?    -P1"68^611^-^^  ^ .^^X^^9^^^J^J^^^  States."      The 

list  of  civil  officers  includes  ambassadors,  members  of  the 
cabinet,  judges  of  all  federal  courts,  even  postmasters ;  but 
it  does  not  include  members  of  either  branch  of  Congress, 
nor,  of  course,  officials  j)f_the  several  states.  Members  of 
the  Senate  and  the  House  may  be  expelled  by  a  two-thirds 
vote  of  their  respective  chambers,  but  not  impeached.  They 
are  not  civil  officers  of  the  United  States.1  This  was  de- 
cided by  the  Senate  in  the  famous  Blount  case  (1797). 
Senators  and  representatives  are  officers  of  the  states  and 
of  the  people  of  the  states.  State  officers  may  only  be  im- 
peached in  their  own  states  under  such  regulations  as  are 
provided  in  the  state  constitutions. 

A  civil  officer  of  the  United  States  is  liable  to  be  impeached 
for  any  offence  committed  while  holding  office  even  though 
he  should  resign  his  post  before  the  impeachment  proceed- 
ings begin.  That  was  one  of  the  points  made  clear  in  the 
Belknap  case  (1876).  Military  and  naval  officers  are  not 
liable  to  impeachment,  but  are  subject  to  trial  by  court- 
martial. 

The  constitution  also  sets  forth  the  offences  for  which 

1  Notice,  in  corroboration  of  this,  the  wording  of  another  clause  in  the 
constitution  (Article  I,  section  vi),  which  provides  that  "no  senator  or 
representative  shall,  during  the  time  for  which  he  was  elected,  be  ap- 
pointed to  any  civil  office." 


THE  SENATE:    ITS  FUNCTIONS  171 

a  civil  officer  of  the  United  States  may  be  impeached;  For  what 
but  it  does  not  do  this  with  unmistakable  clearness.  The  offences? 
grounds  for  impeachment,  as  therein  stated,  are  "  treason, 
bribery  or  other  high  crimes  and  misdemeanors."  The 
first  two  words  of  this  phrase  are  definite  enough,  but  the 
remaining  part  of  it  is  ambiguous  and  has  given  rise  to 
some  differences  of  opinion.  In  general,  however,  it  is 
now  understood  that  civil  officials  are  not  to  be  impeached 
except  for  offences  of  grave  misconduct  or  malfeasance  in 
office.  Inefficiency  or  partisan  favoritism  or  the  abuse  of 
an  official's  discretionary  authority  are  not  accounted 
grounds  for  impeachment  although  they  may  afford  reason 
for  an  officer's  removal  by  the  President,  except  in  the  case 
of  the  judges. 

When  an  officer  is  convicted  by  the  Senate  in  an  impeach-  The 
ment  trial,  he  cannot  be  punished  to  any  further  extent  Penalties- 
than  removal  from  office  and  disqualification  from  ever 
holding  a  federal  position  again.  He  cannot  be  put  to 
death,  imprisoned,  or  fined.  But  conviction  upon  impeach- 
ment does  not  prevent  additional  proceedings  against  an 
official  in  the  ordinary  courts  of  the  land  if  he  has  committed 
an  indictable  offence,  and  such  penalties  may  be  imposed  by 
these  courts.  A  two-thirds  vote  of  the  Senate  is  necessary 
for  a  conviction,  and  no  pardon  from  any  human  source 
is  possible  in  the  case  of  one  convicted  on  impeachment. 

The  procedure  in  impeachments  may  be  briefly  outlined.1  The  pro- 
First,  the  accusation  is  made  by  some  member  of  the  House  cedure- 
of  Representatives  from  the  floor  of  that  body.  A  committee 
of  the  House  is  then  appointed  to  investigate  the  charges. 
If  it  finds  that  an  impeachment  should  be  proceeded  with, 
the  committee  so  reports  to  the  House  and  the  latter  may 
vote  to  accept  this  recommendation.  In  this  case  the 
articles  of  impeachment  are  sent  to  the  ^  Senate.  The 
Senate  has  no  discretion  as  to  whether  it  will  accept 
these  articles  or  not.  It  merely  sets  a  date  for  the  trial 
and  furnishes  the  accused  official  with  a  copy  of  the  charges 
preferred  against  him.  In  hearing  an  impeachment  the 
Senate  sits  as  a  court,  the  senators  being  "placed  on  oath 

1  Alex.  Simpson,  Jr.,  A  Treatise  on  Federal  Impeachments  (Philadelphia,  , 
1916). 


172      THE  GOVERNMENT  OF  THE  UNITED  STATES 

or  affirmation/7  as  the  constitution  requires,  before  the 
proceedings  begin.  The  Vice-President  of  the  United  States 
presides  on  this  as  on  other  occasions  in  the  Senate,  except 
when  the  articles  of  impeachment  are  directed  against  the 
President,  in  which  case  the  Chief  Justice  of  the  Supreme 
Court  presides.  This  provision  is  made  for  an  obvious 
reason.  The  Vice-President  would  not  be  an  appropriate 
presiding  officer  when  the  outcome  of  the  trial  might  deter- 
mine his  own  promotion  to  the  presidency.  In  impeach- 
ments the  usual  rules  of  evidence  are  observed  :  the  accused 
official  is  allowed  to  be  heard  in  his  own  defence,  he  may 
summon  witnesses  and  have  his  own  counsel.  The  proceed- 
ings are  public  until  the  senators  begin  to  vote  upon  a  ver- 
dict. Scrupulous  provision  is  therefore  made  for  fairness 
and  impartiality. 

Famous  In  all  there  have  been  nine  federal  impeachments,  only 

merits0  two  °^  which  have  come  within  the  last  forty  years. 
Only  three  have  resulted  in  convictions.  The  most 
notable  cases  were  those  of  William  Blount,  senator  from 
Tennessee,  in  1797,  Andrew  Johnson,  President  of  the 
United  States,  in  1868,  and  William  W.  Belknap,  Secretary  of 

Blount.  War,  in  1876,  all  of  whom  were  acquitted.  Senator  Blount 
was  charged  with  having  a  part  in  a  conspiracy  to  stir  up 
troubles  in  the  Floridas  and  Louisiana,  which  at  that  time 
belonged  to  Spain.  The  Senate,  after  receiving  the  charges, 
expelled  him  from  its  membership,  but  refused  to  convict  him 
on  impeachment,  holding  that  he  was  not  a  "civil  officer 

Belknap.  of  the  United  States."  Secretary  Belknap  was  charged 
with  the  acceptance  of  bribes  from  an  officer  whom  he  had 
appointed  to  an  Indian  post-tradership.  Belknap  resigned 
before  the  impeachment  proceedings  began,  and  President 
Grant  accepted  his  resignation.  The  point  was  raised  that, 
being  no  longer  the  occupant  of  a  civil  office,  the  accused  was 
now  a  private  citizen  and  not  subject  to  impeachment,  but  the 
Senate  overruled  this  claim  and  proceeded  with  the  impeach- 
ment. In  the  end  Belknap  was  acquitted.  The  charges 

Johnson.  against  President  Andrew  Johnson  in  1868  were  eleven  in 
all,  most  of  them  having  to  do  with  reputed  violations  of 
the  Tenure  of  Office.  Act  which  Congress  had  passed  over 
the  President's  veto  in  1867.  The  trial  was  conducted 


THE  SENATE:    ITS  FUNCTIONS  173 

during  the  month  of  March,  1868.  At  its  conclusion  the 
Senate  voted  thirty-five  to  nineteen  for  conviction,  but 
this  was  one  vote  short  of  the  required  two-thirds.  It  was 
a  close  call.  In  the  autumn  after  Johnson's  acquittal  the 
next  presidential  election  took  place,  and  the  accession  of 
Grant  put  an  end  to  the  highly  strained  relations  which  had 
existed  between  the  executive  and  legislative  branches  of 
national  government.  The  most  recent  instance  of  a  federal 
impeachment  occurred  in  1912  when  a  judge  of  the  short- 
lived federal  Commerce  Court  was  impeached.  The 
charges  related  to  the  acceptance  of  bribes  from  liti- 
gants in  his  Court,  railroad  officials,  and  attorneys  practising 
before  him.  In  this  case  the  accused  was  convicted  and 
removed  from  office.1 

An  impeachment  procedure  is  at  best  a  cumbrous  and 
costly  proceeding.  It  is  not  a  method  to  be  used  if  there 
is  any  simpler  way  of  securing  an  officer's  dismissal.  But 
in  the  case  of  judges,  or  of  other  civil  officers  whom  the 
President  may  decline  to  dismiss,  an  impeachment  is 
the  only  other  way  of  securing  involuntary  removal.  Of 
the  nine  impeachments,  six  have  concerned  members  of  the 
federal  judiciary,  and  three  of  these  ended  in  convictions. 

The  three  special  functions  of  the  Senate,  —  confirmation  The  author- 
of  appointments,  approval  of  treaties,  and  the  trial  of  im-  g^^n 
peachments  —  have  combined  to  give  it  dignity  and  prestige  legislation, 
as  well  as  power.     The  Senate,  however,  in  addition  to 
these  special  prerogatives,  is  a  regular  branch  of  Congress, 
sharing  with  the  House  of  Representatives  the  function 
of  making  the  federal  laws.     With  one  important  excep- 
tion its  legislative  authority  is  coordinate  with  that  of  the 
House.     This    exception    relates    to    measures    for    raising 
the  revenues,  all  of  which,  by  the  terms  of  the  constitution,  Money 
must    " originate   in   the   House   of   Representatives;    but  l 
the  Senate  may  propose  or  concur  with  amendments  as  on 
other  bills."     This  devolution  of  the  initiative  upon  the 
popular  branch   of  Congress  was   one  of  the   concessions 
made  to  larger  states  by  the  First  Compromise.     It  was 

1  For  data  concerning  these  various  impeachment  trials  see  the  Cyclo- 
pedia of  American  Government  (edited  by  A.  C.  McLaughlin  and  Albert 
BushneU  Hart,  3  vols.,  N.  Y.,  1914),  passim. 


174      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Legislative 
powers  of 
the  Senate 
and  the 
House  are 
substan- 
tially co- 
ordinate. 


Disagree- 
ments 

between  the 
two 

chambers  — 
how  settled. 


in  imitation  of  the  English  parliamentary  rule  which,  how- 
ever, goes  a  good  deal  further,  in  that  it  gives  the  House  of 
Commons  the  sole  right  to  originate  all  money  bills,  whether 
relating  to  revenue  or  to  expenditure.1  In  the  United 
States  the  limitation  upon  the  Senate's  authority,  as  ex- 
pressed in  the  constitution,  has  not  proved  to  be  of  great 
importance,  for  the  Senate  can  virtually  initiate  new  revenue 
proposals  under  the  guise  of  amendments.  On  the  other 
hand,  while  the  constitution  of  the  United  States  is  silent 
as  to  which  chamber  shall  originate  bills  for  spending  money, 
thus  creating  the  presumption  that  they  may  originate  in 
either,  the  practice  has  been  to  leave  this  function  wholly 
in  the  hands  of  the  House.  Usage  has  made  this  an  un- 
written law  of  the  constitution. 

In  all  other  matters  the  powers  of  the  two  chambers, 
both  by  the  constitution  and  by  usage,  are  equal  in  scope. 
No  bill  can  become  a  law  without  the  Senate's  approval. 
At  various  times  and  on  various  matters  one  chamber  or 
the  other  may  have  the  greater  amount  of  legislative  influ- 
ence because  of  its  better  organization  or  stronger  hold 
upon  public  opinion.  The  Senate,  being  the  smaller  and 
more  wieldy  body,  usually  has  this  advantage.  If  the 
two  chambers  fail  to  agree  on  any  measure,  one  or  the 
other  must  give  way,  or  a  compromise  must  be  arranged 
by  both  receding  in  part.  This  is  effected  by  means  of  a 
conference  committee,  representing  both  chambers,  and 
made  up  of  three  members  from  each.  In  these  compro- 
;  mises  the  Senate  has  the  reputation  of  usually  getting  the 
'better  of  the  bargain.  It  is,  for  the  most  part,  repre- 
sented on  conference  committees  by  stronger  personalities, 
and  as  a  rule  it  gives  its  conferees  a  firmer  degree  of  support. 
Senators,  too,  are  more  experienced  legislators,  on  the 
average,  than  are  the  members  of  the  House.  Many  of 
them  have  served  terms  in  the  lower  chamber  before  being 
chosen  to  the  Senate  and  have  thereby  acquired  proficiency  in 
all  the  subtleties  of  legislative  practice.  The  older  senators, 
who  guide  the  upper  chamber  in  its  work,  regard  themselves 
as  experts  in  the  science  of  lawmaking,  whereas  the  mem- 
bers of  the  House  are  to  be  reckoned  rather  as  mere 
1  See  below,  p.  306  n. 


THE  SENATE:    ITS  FUNCTIONS  175 


amateurs,  serving  a  two-year  term  only.  They  are  legis- 
lative birds  of  passage,  as  it  were,  who  abide  their  destined 
hour  and  go  their  way.  Even  upon  the  President,  as 
Woodrow  Wilson  remarks,  the  older  members  of  the  Senate 
look  with  "unmistakable  condescension."  If  the  Senate 
has  at  any  time  been  an  imperium  in  imperio,  it  is  not  that 
the  constitution,  laws,  or  usages  of  the  land  have  made  it 
so,  but  because  it  is  a  more  compact  body  than  the  House, 
better  organized,  more  tractable  to  leadership,  and  less 
subject  to  fluctuations  of  opinion. 


CHAPTER  XII 


The 

"popular 
branch" 
of  govern- 
ment. 


The  basis 
of  repre- 
sentation 
in  the 
House. 


THE   HOUSE   OF  REPRESENTATIVES  I     ITS  COMPOSITION 

THE  House  of  Representatives  was  intended  to  be  a 
reformed  and  popularized  House  of  Commons.  It  was 
designed  to  be  a  very  different  chamber  from  the  Senate, 
in  that  it  should  represent  not  the  states  but  the  people  of 
the  states.  In  the  original  frame  of  government  it  was  the 
only  authority  so  constituted  as  to  obtain  its  mandate 
directly  from  the  people.  The  other  agencies  of  the  new 
government,  the  President  and  the  Senate,  were  to  be  chosen 
by  indirect  election.  Hence  the  House  of  Representatives 
was  from  the  first  designated  as  the  "popular  branch." 
It  was  assumed  as  a  matter  of  course  that  any  such  body, 
directly  elected,  would  be  radical,  impulsive,  vacillating. 
The  provisions  relating  to  the  organization  and  powers  of 
the  House  were  avowed  concessions  to  the  principles  of 
democracy,  made  rather  reluctantly  by  some  members  of 
the  convention,  but  regarded  by  all  as  a  practical  necessity. 
To  establish  a  government  with  no  branch  of  it  directly 
responsible  to  the  people  was  out  of  the  question.  In  all 
the  colonies  popular  assemblies  had  grown  up  and  all  the 
states  in  1787  had  provided  for  at  least  one  such  body  in 
their  new  legislatures.  In  view  of  the  bitter  protests  which 
had  been  raised  against  taxation  without  representation 
in  revolutionary  days,  moreover,  the  claim  of  the  people 
to  direct  representation  in  that  branch  of  Congress  which 
was  to  have  the  initiative  in  taxation  was  one  which  could 
not  well  be  denied. 

The  constitution,  accordingly,  provided  that  "the  House 
of  Representatives  shall  be  composed  of  members  chosen 
every  second  year  by  the  people  of  the  several  states."  In 
accordance  with  the  compromises  which  had  been  agreed 

176 


HOUSE  OF   REPRESENTATIVES:    ITS  COMPOSITION     177 

upon,  it  was  further  stipulated,  first,  that  the  several 
states  should  be  represented  according  to  their  respective 
populations,  and,  second,  that  in  estimating  this  popula- 
tion all  other  than  free  white  persons  were  to  be  counted 
on  a  three-fifths  basis ;  in  other  words  that  negro  slaves 
were  to  be  counted  at  only  sixty  per  cent  of  their  numerical 
strength.  The  first  House  of  Representatives  was  to  have 
sixty-five  members,  distributed  among  the  states  in  a  way 
which  was  assumed  to  be  roughly  proportional,  but  a  census 
was  to  be  taken  forthwith  and  a  redistribution  on  a  more 
accurate  basis  was  to  be  arranged  on  these  figures.  Further 
provision  was  made  that  a  similar  redistricting  should  take 
place  after  every  decennial  census,  but  that  the  House 
should  never  contain  more  than  one  member  for  every 
thirty  thousand  population.  No  state,  nevertheless,  was 
ever  to  be  left  without  at  least  one  representative.  Within 
these  limits  the  size  of  the  House  is  fixed  by  action  of  Con- 
gress. 

As  to  who  should  have  the  right  to  vote  at  congressional  who  vote 
elections,  the  framers  of  the  constitution  did  .not  venture  ^esXnai 
to  decide.  There  were  at  the  time  the  widest  differences  elections? 
among  the  thirteen  states  in  the  matter  of  suffrage  require- 
ments, and  it  was  not  deemed  advisable  to  impose  upon 
any  of  them  a  general  provision  which  might  be  out  of  accord 
with  their  own  practice.  Hence  the  conventioji_grace- 
fully  evaj.edJLhe-diffi^ult  que^tipj^by_Ie^yXngjt_to  be  settled 
by  the  state  constitutions.  This,  to  be  sure,  was  not  the 
logical  thing  to  do  when  so  much  care  was  being  bestowed 
upon  the  proper  adjustment  of  minor  questions,  for  the 
suffrage  is  one  of  the  fundamentals  of  free  government. 
Yet  it  was  the  best  of  the  practical  alternatives.  To  have 
reduced  the  diverse  requirements  of  the  several  states  to 
one  uniform  rule  would  have  satisfied  nobody.  To  have 
left  the  matter  open  for  Congress  to  settle  would  have  vested 
in  that  body  the  power  to  create  an  oligarchy  by  law.  Nor 
could  the  determination  of  the  suffrage  at  congressional 
elections  be  left,  without  restriction,  to  the  legislatures  of 
the  various  states,  for  that  would  have  made,  the  federal 
House  of  Representatives  too  dependent  upon  the  state 
legislatures  when  it  was  designed  to  be  responsible  to  the 


178      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Citizen- 
ship and 
the  right 
to  vote 
are  two 
different 
things. 


One  is  a 

federal, 
the  other 
a  state 
matter. 


people  alone.  Hence  the  provision  which  was  finally  ac- 
cepted seemed  to  the  builders  of  the  constitution  "to  be 
the  best  that  lay  within  their  option.'7  Each_state,  accord- 
ingly, determines  by  its  own  constitution  who  may  vote 
at  elections  held  to  choose  "the  more  numerous  branch" 
of  its  own  state  legislature.  These  same  voters,  whoever 
they  may  be,  must  receive  the  right  to  vote  at  congressional 
elections.  On  this  local  discretion,  however,  one  important 
restriction  is  now  imposed,  namely,  that  there  must  be  no 
exclusion  of  citizens  from  voting  rights  because  of  "race, 
color,  or  previous  condition  of  servitude."  This  limitation 
is  imposed  by  the  Fifteenth  Amendment.  If  any  state 
withholds  voting  rights  from  any  adult  male  citizen  of  the 
United  States  "except  for  participation  in  rebellion,  or 
other  crime,"  a  reduction  may  be  made  in  the  congressional 
representation  from  such  state.  This  provision,  it  may  be 
added,  has  not  been  enforced. 

(  There  is  a  clear  distinction,  as  has  been  already  pointed 
out,  between  citizenship  and  the  right  to  vote.1  In  the  popu- 
lar mind  the  two  things  are  often  confused,  but  they  rest 
upon  entirely  different  legal  foundations.  Citizenship  does 
not  necessarily  carry  with  it  the  right  to  vote,  nor,  on  the 
other  hand,  is  it  always  necessary  for  one  to  be  a  citizen  in 
order  to  be  a  voter.  Thousands  of  American  citizens, 
women,  residents  of  the  District  of  Columbia,  untaxed 
Indians,  to  give  a  few  examples,  have  no  right  to  vote,  while 
there  are  thousands  of  voters  who  are  not  American  citizens. 
There  is  no  requirement  that  only  citizens  shall  vote  at 
national  elections,  and  in  several  states  of  the  Union  a  decla- 
ration of  intention  to  become  a  citizen,  which  is  something 
far  short  of  actual  citizenship,  is  all  that  is  required.  In  a 
dozen  or  more  states  of  the  Union,  moreover,  women  are 
permitted  to  vote  for  the  election  of  congressmen ;  while 
in  the  remaining  states  they  have  not  been  given  that  privi- 
lege. 

All  this  ought  to  impress  upon  the  reader's  mind  the  fact 

that  citizenship  is  a  matter  of  federal  jurisdiction,  while  the 

suffrage,  as  the  constitution  now  stands,  Is  wholly  a  matter 

of    state    control.     The    national    government    determines 

1  See  above,  p.  78. 


HOUSE  OF  REPRESENTATIVES:    ITS  COMPOSITION     179 

who  may  become  citizens  and  under  what  conditions.  Each 
state,  on  the  other  hand,  determines  by  its  constitution  and 
laws  who  shall  have  the  right  to  vote  at  all  elections,  whether 
national,  state,  or  municipal,  subject  to  the  restrictions 
contained  in  the  Fourteenth  and  Fifteenth  Amendments. 
The  constitution  of  the  United  States  as  has  been  already 
shown,  does  not  treat  the  right  to  vote  as  an  inalienable 
right  like  the  right  to  freedom  of  speech  or  to  trial  by  jury. 
It  deals  with  it  rather  as  a  privilege  which  may,  under  cer- 
tain broad  restrictions,  be  given  or  denied,  narrowed  or 
widened,  by  the  several  states  at  their  own  discretion  and 
upon  considerations  of  expediency. 

The  result  is  that  the  suffrage  requirements  at  congres-  The  actual 
sional  elections  are  not  alike  in  any  two  states  of  the  Union,  requfre- 
or,  if  they  are,  the  identity  is  by  mere  accident.  Some  ments. 
states,  as  has  been  said,  demand  full  citizenship ;  others 
only  a  declaration  of  intention  to  become  a  citizen.  Some 
require  a  longer  period  of  residence  than  others,  the  time 
ranging  from  three  months  to  a  year ;  a  few  exclude  all 
persons  who  are  unable  to  read  and  write.  Some  require 
that  a  voter  shall  be  a  taxpayer  or  at  least  shall  have  been 
assessed  as  a  taxpayer.  Most  of  the  states  exclude  paupers, 
criminals,  and  idiots,  with  varying  degrees  of  strictness,  from 
their  electoral  lists.  The  most  important  difference  of  all 
is  to  be  found,  however,  in  the  fact  that  some  states  have 
opened  the  suffrage  to  women  while  as  yet  the  majority  of 
the  states  have  not  done  so.  About  the  only  requirement 
that  seems  to  be  uniform  in  every  one  of  the  states  is  the 
rule  that  a  voter,  whether  male  or  female,  must  be  at  least 
twenty-one  years  of  age.1 

No   definition   of  American   suffrage   requirements    can,  The  gradual 
therefore,  be  given  in  general  terms.     Manhood    suffrage  ^f^1011 
is  not  the  rule,  although  it  comes  nearer  to  being  the  rule  suffrage, 
than  the  exception.     Between  the  suffrage  as  it  existed  in 
1787  and  the  suffrage  as  it  exists  to-day,  however,  there  is 
a  world  of  difference.     The  process  of  widening  has  gone 
a  long  way,  not  steadily,  but  by  fits   and  starts.     When 
the  national  constitution  went  into  operation,  property  or 

1  The  detailed  provisions  relating  to  the  suffrage  in  all  the  states  may 
be  found  in  the  Cyclopedia  of  American  Government,  iii,  pp.  449-456. 


180      THE  GOVERNMENT  OF  THE  UNITED  STATES 

taxpaying  qualifications  for  voting  existed  in  most  of 
the  original  states.  The  negroes,  or,  at  any  rate, 
the  great  majority  of  them,  being  in  bondage,  were  not 
allowed  to  vote  although  they  were  counted  on  a  sixty 
per  cent  basis  in  determining  each  state's  quota  of  repre- 
sentatives in  Congress.  Women  were  nowhere  entitled  to 
a  share  in  the  elections.  The  potential  voters  formed  but 
a  small  percentage  of  the  adult  population.1  During  the 
past  one  hundred  and  thirty  years  all  this  has  changed. 
Beginning  with  the  era  of  Jacksonian  democracy  the  prop- 
erty qualification  went  overboard.  The  constitutional 
amendments  of  the  reconstruction  period  forbade  all  suffrage 
discriminations  against  the  negro  and  provided,  moreover, 
that  he  should  be  counted  at  full  value  in  determining  the 
apportionment  of  representatives.2  And  finally,  a  genera- 
tion or  more  later,  came  the  extension  of  voting  privileges 
to  women,  a  movement  which  has  been  gaining  impetus  in 
recent  years. 

HOW  voters  Not  only  are  the  suffrage  requirements  different  in  the 
several  states,  but  the  machinery  for  registering  or  enrolling 
voters  varies  from  place  to  place.  The  most  common 
plan  is  to  require  every  voter  to  present  himself  before  a 
registrar  or  some  similar  official  and  there  to  take  oath 
that  he  is  qualified  by  citizenship,  age,  residence,  and  what- 
ever else  the  laws  of  the  state  may  demand.  This  regis- 
tration takes  place  at  designated  places  and  on  assigned 
dates  some  time  in  advance  of  each  election,  and  from  the 
registration  books  the  voters'  lists  are  compiled.  Usually 
the  same  lists  are  used  at  all  elections,  whether  presidential, 
congressional,  state,  or  municipal,  but  this  is  not  always  the 
case.  Occasionally  it  happens  that  a  state  allows  "women 
to  vote  at  some  elections  but  not  at  others ;  as,  for  example, 
in  Illinois  where  they  now  have  the  suffrage  at  presidential 
but  not  at  congressional  elections.  Ordinarily  no  one  may 
vote  whose  name  is  not  on  the  list  as  a  qualified  voter. 

The  constitution  does  not  require  that  members  of  the 
federal  House  of  Representatives  shall  be  elected  by  con- 

1  A.  E.  McKinley,  Suffrage  Franchise  in  the  Thirteen  English  Colonies 
(Philadelphia,  1905). 

2  See  above,  p.  79. 


HOUSE  OF  REPRESENTATIVES:    ITS  COMPOSITION     181 

gressional  districts  or  by  secret  ballot  or  in  all  states  on  the  Congres- 
same  day.  But  the  federal  statutes  have  now  established 
these  requirements.  The  district  system  is  now  universally 
used  except  in  cases  where  a  state  legislature  has  neglected 
to  make  provision  for  a  division  or  redivision  into  districts, 
in  which  case  all  the  congressmen  from  such  state  are  elected 
at  large.  This  function  of  districting  is  devolved  by  Con- 
gress upon  the  legislatures  of  the  several  states,  but  there 
is  no  way  of  compelling  a  legislature  to  assume  this  duty. 
When  a  legislature  proceeds,  however,  to  the  work  of  divid- 
ing the  state  into  congressional  districts,  the  only  limitations 
imposed  upon  its  discretion  are  that  these  districts  must 
be  approximately  equal  in  population  and  must  not  be 
made  up  of  scattered  units  of  territory.  All  the  territory 
within  the  limits  of  any  congressional  district  must  be 
contiguous. 

The  arranging  of  congressional  districts,  each  of  which  HOW 
elects  one  representative,  is  carried  out  as  follows :  After  created- 
the  national  population  has  been  ascertained  by  a  decennial 
census,  Congress  by  law  fixes  the  number  of  members  to 
be  elected  to  the  House  of  Representatives  and  then  figures 
out  the  "ratio  of  representation"  for  the  whole  country; 
that  is,  the  uniform  quota  of  population  which  is  entitled 
to  elect  one  representative.  This  is  done  by  dividing  the 
total  population  by  the  number  of  members  in  the  House. 
After  the  census  of  1910  the  size  of  the  House  was  fixed 
at  435  and  the  ratio  of  representation  was  found  to  be  The  ratio  of 
somewhat  above  200,000,  since  the  total  population  of  the 
country  was  92,000,000  or  thereabouts.  The  limit  fixed 
by  the  constitution  upon  the  size  of  the  House  is  absurdly 
high,  namely,  that  it  shall  not  exceed  one  member  for  every 
thirty  thousand  population.  Were  this  limit  reached  to-day, 
the  national  House  of  Representatives  would  have  more 
than  three  thousand  members.  The  country's  population 
has  grown,  therefore,  beyond  the  wildest  anticipation  of  its 
Fathers.  The  exact  size  of  the  House  is  fixed  every  ten 
years  far  below  the  constitutional  limit  and  at  such  a  figure 
as  Congress  may  determine.  Under  this  arrangement 
the  House  has  been  steadily  growing  larger.  In  1789  it 
started  with  only  65  members  ;  in  1820  it  had  213  ;  in  1880 


182      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Apportion- 
ing repre- 
sentatives 
among  the 
states. 


Principles 
on  which 
districts 
are  based 


the  number  had  risen  to  292 ;  in  1900  it  was  386,  and  it 
now  stands  at  435.  It  is,  therefore,  more  than  four  times 
as  large  as  the  Senate.  It  is  becoming  so  unwieldy,  in 
fact,  that  the  periodical  increasing  of  its  membership  must 
before  long  come  to  an  end. 

Having  found  the  ratio  of  representation  to  be  200,000 
or  thereabouts,  it  becomes  a  simple  matter  to  determine 
how  many  representatives  each  state  shall  have.  If  Rhode 
Island  has  about  six  hundred  thousand  population,  it  gets 
three  ;  while  New  York  with  ten  millions  of  people  would  get 
i  fifty.  But  no  state,  however  small  its  population,  may  ever 
be  left  without  at  least  one  representative.  The  constitution 
makes  that  rule.  Four  states,  namely,  Arizona,  Delaware, 
Nevada,  and  Wyoming,  would  be  without  a  single  repre- 
sentative were  it  not  for  this  provision,  because  the  popula- 
tion in  each  is  below  the  ratio.  In  the  larger  states  con- 
siderable changes  take  place  every  ten  years.  Some  gain 
rapidly ;  others  stand  still  or  even  lose.  Hence  some  receive 
additional  representatives  after  every  census,  while  others 
have  their  quotas  reduced.  This  means  that  every  ten 
years  the  congressional  districts  within  each  state  must  be 
mapped  out  anew,  or,  as  it  is  commonly  termed,  a  "redis- 
tricting"  must  take  place. 

This  work  of  redistricting  a  state,  when  it  gains  or  loses 
representatives,  is  nominally  performed  by  the  state  legis- 
latures, but  in  reality  the  task  is  deputed  in  the  first  instance 
to  a  legislative  committee  appointed  for  this  purpose.  The 
recommendations  of  this  committee  then  go  before  the  legis- 
lature and  are  there  acted  upon.  So  far  as  practicable,  an 
effort  is  made  to  respect  local  boundaries  by  placing  a  whole 
city  or  town  in  one  congressional  district,  but  at  times  it 
becomes  necessary  to  place  one  part  of  a  municipality  in 
one  congressional  district,  while  the  remaining  part  goes 
into  another.  In  large  cities  it  is  thought  desirable,  also, 
to  respect  the  ward  boundaries,  and  in  great  rural  areas 
the  aim  is  to  put  whole  counties  into  the  same  district 
wherever  it  is  practicable  to  do  so.  To  accomplish  all  these 
things  and  yet  have  districts  approximately  equal  in  popu- 
lation is  sometimes  quite  a  problem.  The  task  of  redis- 
tricting is  one  requiring  careful  study  and  absolute  fairness. 


HOUSE  OF  REPRESENTATIVES:    ITS  COMPOSITION     183 

Too  often,  unhappily,  the  work  of  redistricting  a  state  The 
is  performed  with  neither  care  nor  impartiality.  State  Jf^JjJJJy.. 
legislatures  are  partisan  bodies,  and  so  are  their  committees,  mander- 
Because  of  their  partisanship  the  attempt  is  often  made  mg' 
to  so  lay  out  the  districts  that  the  interests  of  the  dominant 
political  party  may  be  served.  This  practice  of  " gerry- 
mandering" is  more  than  a  century  old;  it  took  its  name 
from  Governor  Elbridge  Gerry  of  Massachusetts,  who 
apparently  sanctioned  one  of  the  first  flagrant  cases  of  parti- 
san district-making  in  that  state.1  By  adding  one  county 
and  taking  off  another,  by  shaping  the  district  in  some 
unnatural  way,  so  that  in  configuration  its  nearest  resem- 
blance may  be  to  a  lizard  or  a  starfish,  it  is  quite  possible 
to  make  the  area  yield  a  comfortable  majority  for  the 
candidate  of  the  right  political  party.  The  hostile  votes, 
on  the  other  hand,  can  be  "hived"  or  massed  into  a  few 
districts  which  are  likely  to  go  to  the  opposition  party  in 
any  event.  The  gerrymander  has  been  a  pernicious  factor 
in  American  politics,  but  of  late  years  popular  sentiment 
has  been  developing  against  it.  This  resentment  now  reacts 
at  times  against  the  party  which  performs  the  work  of  re- 
districting  in  a  way  that  is  flagrantly  unjust  to  its  minority 
opponents. 

The  congressional  districts  having  been  fixed,  they  remain  Nomina- 
unaltered  for  ten  years,  or  until  after  the  next  decennial 
census.  Each  district  elects  one  member  of  Congress  every 
second  year.  Candidates  are  nominated  as  the  laws  of 
each  state  may  provide.  Some  states  still  retain  the  dis- 
trict convention  of  party  delegates  as  the  nomination  body, 
but  the  majority  of  the  states  have  now  provided  for  the; 

1  Mr.  John  Fiske  has  given  the  following  account  of  the  incident : 
"In  1812,  when  Elbridge  Gerry  was  governor  of  Massachusetts,  the 
Republican  legislature  redistributed  the  districts  in  such  wise  that  the 
shapes  of  the  towns  forming  a  single  district  in  Essex  county  gave  to  the 
district  a  somewhat  dragon-like  contour.  This  was  indicated  upon  a  map 
of  Massachusetts  which  Benjamin  Russell,  an  ardent  Federalist  and  editor 
of  the  '  Centinel, '  hung  up  over  his  desk  in  his  office.  The  celebrated 
painter,  Gilbert  Stuart,  coming  into  the  office  one  day  and  observing 
the  uncouth  figure,  added  with  his  pencil  a  head,  wings,  and  claws,  and 
exclaimed, '  That  will  do  for  a  salamander ! '  '  Better  say  a  Gerrymander ! ' 
growled  the  editor ;  and  the  outlandish  name,  thus  duly  coined,  soon  came 
into  general  currency." 


184      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Contested 
elections 
and 
recounts. 


Qualifica- 
tions of 
representa- 
tives. 


nomination  of  candidates  at  a  direct  popular  primary.1 
The  change,  it  was  thought,  would  bring  forth  candidates 
of  a  better  type,  but  it  has  apparently  wrought  110  great 
change  in  this  respect.  The  elections  are  held  throughout 
the  country  on  the  same  day,  namely,  on  the  Tuesday 
following  the  first  Monday  of  November  in  every  alternate 
year.2  The  voting  must  be  by  secret  ballot,  but  this  does 
not  preclude  the  use  of  voting  machines.  Usually  candi- 
dates for  other  offices,  state  or  national,  are  chosen  at  the 
same  election  and  on  the  same  ballot,  the  so-called  Austra- 
lian type  of  ballot  being  the  one  most  commonly  used. 

When  any  dispute  arises  in  connection  with  the  result 
of  the  voting  or  the  validity  of  the  election,  the  House  of 
Representatives  is  the  deciding  authority,  having  the  sole 
power  to  declare  which  of  the  claimants  is  to  be  seated. 
The  procedure  in  such  cases  is  for  the  defeated  candidate 
to  serve  notice  upon  the  one  who  has  been  reported  as 
elected,  setting  forth  the  grounds  of  his  protest.  To  this 
the  latter  makes  formal  reply,  and  the  papers  are  then 
transmitted  to  the  Clerk  of  the  House.  The  matter  is 
then  referred  to  one  of  the  committees  on  elections,  of  which 
the  House  maintains  three,  and  this  committee  hears  the 
evidence  in  the  case.  When  this  is  concluded,  the  committee 
reports  to  the  House,  where  its  recommendation  is  almost 
invariably  accepted.  Contested  elections  are  not  common 
in  the  United  States.  The  general  tendency  is  to  accept 
the  results  of  the  balloting  as  announced  when  the  polls 
are  closed.  When  the  successful  candidate's  lead  is  very 
small,  however,  a  recount  of  the  votes  is  sometimes  asked 
for  and  granted  under  such  conditions  as  the  state  election 
laws  provide. 

The  technical  qualifications  of  a  representative,  as  set 
forth  in  the  constitution,  are  merely  that  he  shall  be  a 
citizen  of  at  least  seven  years'  standing,  at  least  twenty-five 
years  of  age,  an  inhabitant  of  the  state  from  which  he  is 
elected,  and  not  the  holder  of.  any  federal  office.3  Nothing 

1  For  an  explanation,  see  below,  pp.  418-419. 

2  A  few  states,  Maine,  for  example,  are  allowed  to  hold  their  elections 
earlier  in  the  year. 

3  Even  army  and  navy  officers  are  regarded  as  coming  within  the  scope 
of  this  prohibition. 


HOUSE  OF  REPRESENTATIVES:    ITS  COMPOSITION     185 

is  said  about  his  being  an  inhabitant  of  the  congressional 
district  which  elects  him.     Indeed,  it  is  quite  possible  for 
a  congressional  district  to  elect  a  non-resident,  and  that 
has  occasionally  happened.     But  there  is  a  strong  prejudice  The  un- 
against  the  outsider  who  ventures  to  seek  the  votes  of  any  Britten 

J     law  as  to 

community  in  opposition  to  local  candidates,  and  he  is  not  district 
likely  to  make  much  headway  against  it.     Residence  within  residence- 
the  district  is,  therefore,  an  unwritten  requirement.     This 
is  a  matter  in  which  American  political  usage  differs  greatly 
from  that  of  England.     In  that  country,  the  election  of  a 
non-resident  to  the  House  of  Commons  is  not  at  all  uncom-  English  and 
mon ;    on  the  contrary  many  of  the  political  leaders  repre-  American 
sent  districts  (or  constituencies)  in  which  they  do  not  reside 
and  which  they  .may  rarely  visit  except  on  the  eve  of  an 
election.     The   merit    of   the   English   practice   is   that   it 
encourages  a  member  of  parliament  to  make  his  work  appeal 
to  more  than  a  single  district,  to  develop  himself  into  a 
national  figure.     A   strong  man  in   English   politics  need 
never  be  without  a  seat  in  parliament ;  but  the  ablest  states- 
man in  the  United  States  has  practically  no  chance  of  a 
seat  in  Congress  if  his  own  home  district  should  contain  a 
majority  of  voters  who  belong  to  the  opposite  political  party. 

The  reasons  for  the  American  prejudice  on  this  point  why  the 
are  purely  practical,  and  they  have  been  summarized  by  A^^an 
Lord  Bryce  in  a  way  which  can  hardly  be  improved  upon,  insists  upon 
Local  pride  and  jealousy,  he  points  out,  are  factors.  Mem- 
bers  of  the  House  of  Representatives  are  reasonably  well 
paid  and  every  district  has  its  own  crop  of  payroll-patriots. 
They  are  ready  to  join  in  the  hue  and  cry  against  the 
"carpet-bagger"  who  comes  in  from  outside.  Every 
district,  moreover,  wants  a  share  in  the  annual  appropria- 
tions for  post-offices  or  for  the  improvement  of  rivers,  har- 
.bors,  or  roads,  and  the  general  feeling  is  that  a  local  man 
can  best  discern  the  local  needs.  Hence,  although  the 
constitution  intends  the  House  of  Representatives  to  rep- 
resent the  people  of  states  and  not  the  people  of  districts, 
the  unwritten  rule  as  to  district  residence  has  narrowed  the 
horizon  of  the  members  to  the  bounds  of  their  own  com- 
munities. 

All  this  suggests  a  query  as  to  the  proper  function  of  a 


186      THE  GOVERNMENT  OF  THE  UNITED   STATES 


sentative. 


A  concrete 
example. 


The  logical  popular  representative,  whether  in  Congress  or  in  a  state 
legislature  or  in  any  other  elective  body.  Is  it  his  duty  to 
act  in  accordance  with  the  dictates  of  his  own  judgment 
and  in  obedience  to  his  own  conception  of  the  general  wel- 
fare, regardless  of  whether  this  may  reflect  the  opinion  of 
his  own  particular  district?  Or,  is  the  sole  function  of  a 
representative  to  represent,  in  other  words  to  discover, 
what  his  district  desires  and  to  be  governed  accordingly? 
These  are  fundamental  questions  of  duty  which  every 
representative  must  face.  A  legislator  may,  for  instance, 
be  personally  opposed  to  the  use  of  the  initiative  and  refer- 
endum as  a  method  of  making  laws,  and  may  sincerely 
believe  this  movement  to  be  at  variance  with  the  best 
interests  of  the  whole  country.  Yet  if  a  majority  of  the 
voters  in  his  own  district  be  known  to  him  to  favor  the 
initiative  and  referendum,  how  shall  he  vote  upon  the 
project  in  Congress  or  in  the  legislature?  Shall  he  stultify 
his  own  judgment  and  convictions,  or  shall  he  disregard 
the  logic  of  his  own  status  as  a  popular  representative? 
Is  it  conscience  or  constituents  that  should  determine  his 
vote? 

Congressmen  are  often  confronted  by  this  dilemma. 
Students  of  political  philosophy,  too,  have  long  wrestled 
with  the  fundamental  question  but  have  reached  no  agree- 
ment upon  it.1  It  may  not  be  inappropriate  to  quote  in 
The  dictum  this  connection,  however,  the  famous  dictum  of  Edmund 
of  Burke.  Burke  in  his  address  to  the  electors  of  Bristol  when  he 
defended  certain  unpopular  votes  which,  as  their  repre- 
sentative, he  had  given  in  the  House  of  Commons.  "I 
maintained  your  interests  against  your  opinions,"  he  de- 
clared. "A  representative  worthy  of  you  ought  to  be  a 
person  of  stability.  I  am  to  look  indeed  to  your  opinions ; 
but  to  such  opinions  as  you  and  I  must  have  five  years 
hence.  I  am  not  to  look  to  the  flash  of  the  day."  The 
idea  that  a  representative  should  reflect  the  sentiment  and 
desires  of  his  district  rather  than  his  own  judgment  or 
inclinations  is,  nevertheless,  firmly  bedded  in  the  average 
American  voter's  mind. 


1  For  a  further  discussion  see  J.  W.  Jenks,  Principles  of  Politics  (N.  Y., 
1909),  pp.  76-80. 


HOUSE  OF  REPRESENTATIVES:    ITS  COMPOSITION     187 

The  House  of  Representatives  holds  one  session  each  Sessions  of 
year,    so    that    there    are    two    regular   sessions   between  theHouse- 
elections.     These  two  sessions,  however,  are  not  of  equal 
length  or  importance.     One  is  a  short  session,  beginning  in 
December  and  concluding  not  later  than  the  following  fourth 
of  March ;    the  other  is  a  longer  session,  beginning  in  De- 
cemb^r  of  the  year  following  and  extending  through  July  or 
August.     The  House  assembles  for  its  short  session  soon 
after  the  congressional  elections  take  place  in  the  even- 
numbered  years ;    but  the  newly  elected  congressmen  do 
not  take  their  seats  at  this  session  because  their  terms  of 
office  do  not  officially  begin  until  the  following    March. 
Hence  it  is  normally  thirteen  months  after  his  election  before,  The  long 
a  new  congressman  actively  begins  his  legislative  duties.  {^^ 
It  is  unfortunate  enough  that  a  new  President,  elected  in  congress- 
November,  should  not  take  office  till  the  following  March,  ™a^'s  eiec~ 
but  that  congressmen  should  not  begin  their  actual  service  the  begin- 
until  still  another  nine  months  have  passed  seems  to  involve  nin.g  of  hia 
an  inexcusable  departure  from  the  realities  of  representative  duties, 
government.     It  means  that  for  thirteen  months  the  busi- 
ness of  legislation  and  the  spending  of  public  money  may 
remain  under  the  control  of  men  who  have  been  defeated 
at  the  polls.     Large  appropriations  are  sometimes  carried 
through  by  the  votes  of  congressmen  who  have  been  defeated 
for  reelection.     Moreover,  the  present  arrangement  means 
that  although  a  representative  serves  for  two  years  only, 
the  interval  between  the  beginning  of.  his  campaign  for 
a  nomination  and  the  close  of  his  actual  service  in  one 
Congress  is  almost  four  years,  during  all  of  which  interval 
he  must  give  a  large  part  of  his  time  to  the  public.     To  earn 
two  years'  salary  requires  nea/ly  four  years  of  effort. 

The  two-year  term  for  which  representatives  are  elected  should 
is  too  short  for  the  beet  results.     Members  of  the  popular  ^f^8" 
chamber  in  every  other  country  serve  a  longer  period.     The  chosen  for 
system  of  biennial  elections^  was  adopted  in  America  at  lonser? 
a  time  of  strong  partiality  for  short  terms,  and  if  some 
of  the  delegates  in  the  constitutional  convention  of  1787 
could  have  had  their  way,  the  congressional  term  would  have 
been  one  year  only.     It  is   quite  true  that   congressmen 
are  frequently  reflected,  and  that  some  of  them  manage 


188      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Effect  of 
short  terms 
upon  con- 
gressional 
leadership. 


to  retain  their  seats  for  ten  or  twenty  years ;  but  that  is 
exceptional.  A  great  many  are  retired  to  private  life  after 
one  or  two  terms,  before  they  have  had  a  real  opportunity 
to  demonstrate  their  capacity  as  legislators  or  even  to  acquire 
much  familiarity  with  national  problems.  The  frequency 
with  which  the  elections  come,  moreover,  is  distracting 
in  its  effects.  A  congressman  who  manages  to  retain  his 
seat  has  a  double  contest  on  his  hands  every  second  year, 
a  fight  with  his  political  friends  for  the  nomination  and 
another  with  his  political  enemies  for  election.  The  political 
exigencies  of  his  own  district,  therefore,  are  always  before 
his  eyes,  and  the  opportunity  to  see  national  affairs  in  a 
broad  light  is  correspondingly  restricted. 

The  few  members  who  manage  to  secure  reelection  to 
Congress  term  after  term  become,  therefore,  its  recognized 
leaders  although  they  may  not  be  fitted  for  that  role  by 
natural  capacity.  Seniority  of  service  determines  the 
chairmanships  of  important  committees  and  gives  to  the 
few  congressmen  who  have  been  repeatedly  reflected  an 
influence  which  their  own  merits  would  never  earn.  No 
other  practice,  as  Lord  Bryce  has  pointed  out,  could  more 
effectually  discourage  noble  ambition  or  check  the  growth 
of  a  class  of  accomplished  statesmen.  There  are  few  walks 
of  life  in  which  experience  counts  for  more  than  in  politics. 
No  one  comes  to  Congress  with  an  intuitive  knowledge 
of  what  to  do.  The  new  member  is  handicapped  by  the 
complexity  of  the  rules  and  by  a  natural  disinclination  to 
push  himself  too  far  forward  until  he  has  acquired  a  sure  foot- 
ing. Far  from  making  the  House  a  democratic  body,  re- 
sponsible to  the  fluctuating  pulse  of  public  opinion,  the 
short  term  has  in  reality  tended  to  centre  its  great  powers 
in  the  hands  of  a  few  old-timers,  while  the  great  body  of 
newer  members  have  to  be  content  with  a  minor  share  in 
the  determination  of  legislative  policy.  The  situation  in 
this  respect  is  not  now  so  bad,  however,  as  it  was  before 
the  congressional  revolution  of  19 10.1 

The  debates  in  the  House  of  Representatives  are  not 
of  a  high  order.  Nor  are  they  as  good  as  they  used 
to  be.  This  is  in  part  due,  no  doubt,  to  the  great  size 
1  See  below,  pp.  197-198. 


HOUSE  OF  REPRESENTATIVES:    ITS  COMPOSITION     189 

of  the  chamber  in  which  the  sessions  are  held.     Only  a  The 
leather-lunged  orator  can  make  himself  heard  in  every  part 
of  it.     "It  does  not  always  happen  that  a  powerful  mind  in  the 
and  a  powerful  voice  are  combined  in  the  same  individual,  House- 
and  often  the  member  with  the  real  message  cannot  be  heard, 
while  the  member  with  nothing  to  say  has  no  difficulty 
in  filling  the   chamber  with  sound.  .  .  .     This  condition  Chamber 
tends  to  develop  a  manner  of  speaking  that  is  gladiatorial  Adapted  to 
and  declamatory  .  .  .  and  except  on  occasions  much  too  forensic 
rare  the  House  does  not  strike  the  spectator  in  the  gallery  argument- 
as  an  impressive  body."  1     Prior  to  1909  the  situation  was 
much  worse,  but  since  that  time  the  auditorium  has  been 
reduced  in  size.     The  acoustic  facilities  of  the  House  remain, 
however,  the  worst  of  any  great  legislative  chamber  in  the 
world. 

To  some  extent,  again,  the  paucity  of  good  speeches  is  it  is  easier 
due  to  strict  limitation  upon  the  time  that  any  speaker  J°ee™e 
may  keep  the  floor,  and  something  may  be  credited  to  the  than  to 
custom  of  allowing  a  member  to  have  his  speech  printed 
in  full  without  delivering  it  at  all.  Why  should  a  repre- 
sentative make  long  speeches,  or  why  should  others  listen 
to  them,  when  it  is  so  easy  to  place  an  argument  in  printed 
form,  at  the  public  expense,  into  the  hands  of  every  one  ? 
Members,  therefore,  ask  for  "leave  to  print"  or  to  "extend 
in  print"  a  few  remarks  made  on  the  floor,  and  this  request, 
while  it  must  be  unanimous  under  the  rules,  is  usually 
granted.  Copies  of  such  speeches,  printed  without  ever 
having  been  delivered,  are  then  struck  off  by  the  thousand 
and  sent  through  the  mails,  free  of  postage,  to  the  voters 
of  the  districts  from  which  the  congressmen  come.  The 
"franking"  privilege,  or  right  to  make  free  use  of  the  mails 
for  all  official  business,  has  been  grossly  abused  in  this  way. 
Magazine  articles  and  even  whole  books  have  sometimes 
been  reprinted  and  distributed  broadcast  by  .congressmen 
at  he  public  expense. 

r^hese  things  contribute  to  the  absence  of  much  genuine 
or  itorical  effort  in  the  House,  but  they  do  not  account  for 
it  entirely.  The  stupendous  mass  of  routine  business  which 
conies  before  the  House  day  after  day  is  the  great  deterrent 

1  S.  W.  McCall,  The  Business  of  Congress  (N.  Y.,  1911),  pp.  108-109. 


190       THE  GOVERNMENT  OF  THE  UNITED  STATES 


speech- 
making. 


The  pres-  to  prolonged  deliberation.     The  merely  mechanical  work 

routine  °^  Pu^mg  the  grist  of  bills  through  their  various  stages 

business  takes  a  great  deal  of  time.     The  last  Congress,  at  its  two 

leaves  httie  sessions   received  more  than  twenty-six  thousand  bills,  not 

time  for  '  .  J  . 

to  speak  of  joint  resolutions,  concurrent  resolutions,  and 
reports  by  the  hundreds.  Of  this  total  the  great  major- 
ity never  received  any  serious  consideration,  even  by  a  sub- 
committee, but  of  those  which  did  receive  consideration 
about  seven  hundred  public  bills  and  seven  thousand  private 
bills  were  finally  passed.  If  there  were  an  earnest  consider- 
ation of  every  measure,  the  House  would  never  get  its  work 
done  by  sitting  twenty-four  hours  throughout  every  day  in 
the  year.  Routine  business,  therefore,  must  have  the  right 
of  way.  Discussion  has  been  transferred  to  the  committee 
rooms,  and  it  is  only  on  matters  of  unusual  importance  that 
a  real  debate  takes  place  on  the  floor  of  the  House  itself. 
Herein  the  popular  branch  of  Congress  differs  greatly  from 
the  House  of  Commons,  where  the  art  of  public  discussion 
has  not  yet  become  wholly  obsolete. 


CHAPTER  XIII 

THE   HOUSE    OF   REPRESENTATIVES:     ORGANIZATION   AND 

PROCEDURE 

WHEN  a  new  House  assembles,  its  first  duty  is  that  of  HOW  the 
organizing.  The  roll  is  called  to  determine  the  presence  Hous® 
of  a  constitutional  quorum.  During  this  proceeding  the 
clerk  of  the  last  House  presides.  Then  the  election  of  a 
Speaker  is  in  order.  The  House  also  chooses  its  other 
officers,  including  the  chaplain,  sergeant-at-arms,  clerk,  and 
doorkeepers.  The  rules,  usually  those  of  the  presiding 
Congress,  are  then  provisionally  adopted  to  stand  until 
altered ;  the  oath  is  administered  to  the  members,  and  the 
House  is  then  ready  to  proceed  with  the  business  of  legis- 
lation. At  this  point  the  lower  chamber  joins  with  the 
Senate  in  sending  a  committee  to  notify  the  President  that 
both  bodies  are  ready  to  receive  any  communication  he 
may  desire  to  make. 

The  House  of  Representatives  has  full  power  over  its  The  House 
own  rules  of  procedure.  The  first  House,  in  1789,  adopted  rules- 
a  set  of  rules  based  largely  upon  those  which  had  been  used 
in  the  Congress  of  the  Confederation.  These,  again,  had 
been  modelled  on  the  rules  of  the  colonial  assemblies  which 
harked  back  to  the  procedure  of  the  English  House  of 
Commons.  Each  succeeding  House  since  1789  has  re- 
adopted  these  original  rules  with  various  changes  from  time 
to  time.  On  a  few  occasions  there  has  been  a  considerable 
revision,  but  many  of  the  provisions  which  were  adopted 
in  1789  remain  substantially  unaltered  at  the  present  time. 
The  rules  of  Congress,  therefore,  are  not  the  work  of  any 
one  man.  They  are  an  evolution,  the  growth  of  many 
centuries  of  legislative  experience.  Some  of  them,  as,  for 
example,  the  provision  that  a  bill  shall  be  given  three  read- 

191 


192      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 
Speaker. 


Origin  of 
his  office. 


Attributes 
of  the 
Speaker's 
office  in 
England. 


ings,  go  back  a  long  way.  in  English  parliamentary  history. 
In  1837  the  House  adopted  a  provision,  which  is  still  in 
force,  that  it  should  be  guided  by  Jefferson's  famous  parlia- 
mentary manual  in  all  matters  not  covered  by  its  own  rules 
and  not  inconsistent  therewith,  but  -this  compendium  is 
not  now  referred  to  very  frequently.1  The  House  rules 
and  the  precedents  cover  practically  everything  that  can 
possibly  arise.2 

The  Speaker  is  the  presiding  officer.  The  men  who 
framed  the  constitution  decided  without  much  argument 
that  the  House  should  have  such  an  Official,  chosen  by  itself, 
thus  perpetuating  in  the  New  World  a  post  that  had  ac- 
quired a  tradition  of  democracy  in  the  Old.  In  English 
parliamentary  annals  the  Speaker  had  more  than  once 
stood  forth  as  the  tribune  of  the  people,  defying  the  arbitrary 
authority  of  the  crown.  On  one  occasion  well  known  to 
students  of  English  constitutional  history,  for  example, 
Charles  I  strode  into  the  Ho.use  of  Commons  with  a  body 
of  soldiers  to  seize  five  of  its  members  and  demanded  that 
the  Speaker  point  them  out  to  him.  But  the  Speaker  with 
unconquerable  self-assertion  merely  replied  that  he  had 
"  neither  eyes  to  see  nor  tongue  to  speak  save  only  as  this 
House  shall  command." 3  The  speakership  was  in  due 
course  transplanted  to  the  colonial  assemblies  in  America, 
and  here  also  its  tradition  continued  good.  So  there  was 
written  into  the  constitution  of  the  United  States  a  provision 
that  "the  House  of  Representatives  shall  choose  their  own 
Speaker." 

But  the  office  of  Speaker  in  America  presently  came  to 
differ  from  that  which  had  so  long  existed  in  the  land  of 
its  origin.  In  the  House  of  Commons  the  Speaker  is  and 
always  has  been  a  mere  presiding  officer,  with  no  powers 
except  those  which  one  ordinarily  associates  with  the  chair- 

1  S.  W.  McCall,  The  Business  of  Congress  (N.  Y.,  1911),  p.  33. 

2  These  precedents  have  been  brought  together  in  Asher  C.  Hinds, 
Precedents  of  the  House  of  Representatives  of  the   United  States   (8  vols., 
Washington,  1907-1908),  published  also  as  House  Document,  No.  355, 
59th  Congress,  2d  Session. 

3  Josiah  Royce,  in  his  Philosophy  of  Loyalty  (N.  Y.,  1909),  cites  this 
incident  as  a  conspicuous  historical  example  of  loyalty  to  a  cause  (pp.  102- 
107). 


ORGANIZATION  AND  PROCEDURE  193 

manship  of  any  gathering.  He  has  a  few  honorary  functions 
and  privileges,  but  they  are  of  no  political  account.  Usually 
he  is  a  man  of  political  distinction  and  long  parliamentary 
service,  but  not  one  who  has  been  overmuch  in  the  public 
eye  as  a  party  leader.  Above  all  things,  he  is  expected  to 
be  fair,  tactful,  and  firm  in  the  discharge  of  his  duties,  and 
absolutely  neutral,  never  giving  members  of  his  own  party 
an  obvious  preference  nor  allowing  himself  to  be  drawn  into 
the  thick  of  partisan  controversy.  The  English  Speaker 
is  commonly  reflected  by  his  constituency  to  successive 
parliaments  without  opposition  and  often  serves  for  a 
long  term  of  years  despite  changes  in  the  political  complexion 
of  the  House.  He  appoints  no  committees,  and  his  posi- 
tion is  certainly  not  one  of  either  open  or  covert  leadership. 
His  position,  in  fact,  comes  as  close  to  absolute  non-partisan- 
ship as  is  possible  in  any  legislative  body.1 

In  the  colonial  assemblies  of  pre-Revolutionary  America  Deveiop- 
the  office  of  Speaker  soon  began  to  show  the  effects  of  a  [j1 
new  environment,  particularly  as  political  controversies  office  in 
grew  acute.  Men  like  Otis  and  Randolph,  who  served  as  America- 
speakers  in  Massachusetts  and  Virginia,  could  not  constrain 
themselves  to  any  attitude  of  scrupulous  neutrality.  In  the 
days  of  passive  resistance  they  perforce  assumed  the  func- 
tion of  active  leadership.  Whether  the  makers  of  the 
constitution,  when  they  gave  the  House  of  Representatives 
the  right  to  choose  its  own  Speaker,  had  in  mind  the  Eng- 
lish or  the  colonial  model  is  not  easy  to  say,  for  they  were 
quite  familiar  with  both.  They  were  also  familiar  with 
the  position  held  by  the  presiding  officer  of  the  Congress 
under  the  Articles  of  Confederation.  In  the  absence  of  an 
independent  executive  this  personage  had  been  the  highest 
officer  of  the  confederated  government.  At  any  rate  the 
constitution  places  no  restrictions  upon  the  office,  and  in 
the  course  of  time  the  Speaker  of  the  House  began  to  gather 
power  into  his  own  hands.  Ultimately  he  became  the  most 
powerful  figure  in  national  administration,  next  to  the  Presi- 
dent himself.2 

1  Michael  McDonagh,  The  Speaker  of  the  House  (London,  1914). 

2  M.  R.  Follett,  The  Speaker  of  the  House  of  Representatives  (N.  Y., 
1909). 


194      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Ground- 
work of 
the 

Speaker's 
powers. 


How  the 
Speaker  is 
chosen. 


Why  and  how  did  this  development  take  place?  Well, 
to  begin  with,  it  arose  out  of  the  fact  that  the  constitution 
provided  the  House  with  no  official  leadership.  Apparently 
the  statesmen  of  1787  took  it  for  granted  that  both  Houses 
of  Congress  would  be  able  to  do  their  work  smoothly  with- 
out any  official  leadership,  a  strange  assumption  as  it  appears 
at  this  day.  The  House  was  a  small  body  to  start  with; 
at  first  it  had  only  sixty-five  members,  or  about  two-thirds 
of  the  Senate's  present  membership.  But  it  grew  rapidly 
with  the  increase  of  national  population.  In  twenty  years  it 
had  doubled  in  size,  and  before  the  Civil  War  it  had  doubled 
again.  Even  then  it  had  only  about  two  hundred  and 
forty  members,  to  which  it  has  since  added  nearly  two  hun- 
dred more.  With  this  growth,  and  with  the  increase  of 
business  to  be  done  at  every  session,  the  need  of  a  steering 
hand  became  steadily  more  urgent.  This  function  could 
not,  as  in  England,  devolve  upon  members  of  the  Cabinet 
because  they  did  not  possess  seats  in  the  House.  What 
more  natural,  therefore,  than  its  gravitation  into  the  hands 
of  the  Speaker  as  the  only  conspicuous  officer  provided  by 
the  constitution  to  be  chosen  by  the  House  itself?  That, 
at  any  rate,  is  what  happened.  The  Speaker  became  the 
recognized  leader  of  the  majority  party,  chosen  virtually 
by  the  caucus  of  that  party,  and  one  who  could  be  depended 
upon  to  use  his  office  for  its  benefit. 

A  word  as  to  this  caucus  method  of  selecting  the  Speaker. 
In  name  the  choice  is  always  made  by  the  House  itself 
at  the  beginning  of  each  Congress,  that  is,  every  second 
year.  In  practice,  however,  it  is  always  agreed  upon, 
before  the  House  meets,  by  a  caucus  composed  of  members 
of  the  majority  party.  To  be  chosen  speaker  is  a  high 
honor,  one  which  goes  only  to  a  man  of  considerable  experi- 
ence in  Congress  and  of  undoubted  prominence  in  his  party. 
If  a  change  takes  place  in  the  relative  strength  of  the  parties 
as  the  result  of  an  election,  the  next  Speaker  is  altogether 
likely  to  be  the  man  who  served  as  leader  of  his  party  when 
it  was  in  the  minority.  The  caucus  makes  the  choice  and 
the  House  merely  ratifies  it. 

The  powers  of  the  Speaker  have  been  developed  from  three 
sources :  first,  his  formal  authority  as  a  presiding  officer ; 


ORGANIZATION  AND  PROCEDURE  195 

"*)  $ 

second,  his  function  of  appointing  committees ; l  and  third,  Sources 
his  position  as  a  party  leader.     Only  the  first  of  these  is  authority, 
implied  in  the  constitution ;   the  others  have  come  to  him 
either  by  the  rules  of  the  House  itself  or  by  usage. 

Except  when  the  House  is  sitting  in  Committee  of  the  The 
Whole,  the  Speaker  is  in  the  chair.     He  has  the  customary 
prerogatives  of  a  presiding  officer ;   he  recognizes  members  i.  As  a 
wishing  to  speak  or  make  motions,  decides  all  points  of  presiding 

,       .    .  1-1  i  i       omcer. 

order  subject  to  overruling  decisions  which  may  be  made 
by  a  majority  of  the  House,  puts  questions  to  a  vote,  an- 
nounces the  result,  and  so  on.  The  power  to  recognize  (a)  the 
one  member  rather  than  another  is  one  which  can  be  used  ri«ht  to 
to  some  extent  for  partisan  advantage,  although  the  Speaker  members, 
is  accustomed  to  observe  certain  long-standing  usages  of 
the  House  in  relation  to  this  matter.  Members  who  desire 
to  be  heard  rise  in  their  places  and  address  the  presiding 
officer  as  "Mr.  Speaker."  The  Speaker,  turning  to  the 
member  whom  he  decides  to  recognize,  asks,  "For  what 
purpose  does  the  gentleman  rise?"  After  being  thus  recog- 
nized, a  member  may  be  interrupted  by  any  other  repre- 
sentative and  asked  to  "yield  the  floor"  in  order  that  some 
explanation  or  brief  interpolation  may  be  made.  This 
the  member  having  the  floor  may  do  or  not  as  he  chooses, 
but  the  usual  practice  is  to  yield  when  requested. 

The  Speaker  may  himself  take  the  floor,  and  occasionally 
does  so.  In  such  case  he  calls  some  member  to  take  the 
chair  temporarily.  Likewise  he  has  a  vote  on  all  questions 
and  not  merely  in  the  event  of  a  tie,  as  is  the  case  with  the 
Vice-President  of  the  United  States  who  presides  in  the 
Senate.  By  becoming  Speaker  he  loses  none  of  his  rights 
or  privileges  as  a  member.  Having  once  voted  on  a  quesv 
tion,  he  may  not,  however,  vote  again  to  break  a  tie.  In. 
the  case  of  a  tie,  if  the  Speaker  has  voted,  the  motion  is 
deemed  to  be  defeated. 

The  Speaker's  right  to  determine,  in  the  first  instance,  all  (6)  the 
points  of  order,  procedure,  or  privilege  gives  him  the  oppor-  j^t^ 
tunity  to  help  his  own  party^±o  embarrass  its  opponents,  points  of 
His  discretion  in  this  field  is  by  no  means  unrestrained,  order- 

1  This  branch  of  his  authority  has  now  been  largely  taken  away.     See 
below,  p.  197. 


196      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Limitations 
on  this 
right. 


The 

Speaker 
is  not 
rigidly 
bound  by 
precedents. 


His  author- 
ity on 
points  of 
order  is 
always 
subject 
to  the 
control 
of  the 
House 
itself. 


however.  The  rules  of  the  House  on  many  matters  are 
plain,  and  the  Speaker  has  no  authority  to  set  them  aside. 
The  rulings  made  by  previous  speakers,  especially  when 
these  have  been  long  acquiesced  in,  are  also  regarded  as 
binding ;  although  on  occasions  a  Speaker  has  had  the 
hardihood  to  set  one  of  these  rulings  aside  and  to  establish 
a  new  precedent. 

The  most  notable  example  of  this  precedent-breaking, 
and  the  one  most  commonly  cited,  is  a  ruling  once  made  by 
Speaker  Thomas  B.  Reed  with  reference  to  what  constitutes 
a  quorum  of  the  House.  The  constitution  prescribes  that 
"a  majority  shall  constitute  a  quorum  to  do  business,"  but 
does  this  mean  that  a  majority  of  the  House  must  be  re- 
corded as  voting  on  a  measure  or  merely  that  a  majority 
of  the  members  must  be  present,  whether  voting  or  not? 
For  more  than  a  hundred  years  the  former  interpretation 
was  accepted  and  a  quorum  was  not  deemed  to  be  present 
unless  the  roll-call  showed  a  majority  of  the  entire  member- 
ship to  be  recorded  either  for  or  against  a  measure.  This 
repeatedly  led  to  the  blocking  of  business  by  members  of 
the  minority  party  who,  although  in  their  seats,  would 
concertedly  refrain  from  voting  and  .thus  prevent  the  official 
record  from  showing  the  presence  of  a  quorum.  In  1890, 
Speaker  Reed  directed  that  the  names  of  all  those  present 
but  not  voting  should  be  added  to  the  record  and  that  if 
the  total  should  prove  to  be  a  majority  of  the  entire  member- 
ship, the  House  should  be  deemed  to  have  a  quorum.  Al- 
though this  new  ruling  was  bitterly  attacked  as  unconstitu- 
tional the  Supreme  Court  later  upheld  it  and  it  is  the  rule 
to-day. 

This  instance  has  been  mentioned  because  it  involved 
an  exceptional  exercise  of  the  Speaker's  authority  to  rule 
on  a  point  of  order  in  defiance  of  the  established  precedents. 
Controversies  concerning  procedure  come  up  frequently, 
but  the  Speaker  has  an  ample  store  of  precedents  to  which 
he  can  refer  for  guidance.  Where  there  is  no  precedent, 
he  usually  follows  the  general  rules  of  parliamentary  prac- 
tice. Yet  despite  restrictions  the  Speaker  retains  a  consid- 
erable amount  of  discretion  which  he  may  use  to  the  advan- 
tage of  his  own  political  friends  in  the  House.  On  occasions 


ORGANIZATION  AND  PROCEDURE  197 

this  power  has  been  used  ruthlessly,  to  the  point  of  causing 
an  open  revolt  on  the  part  of  the  minority ;  but  surveying 
congressional  history  as  a  whole  it  cannot  be  said  that 
the  Speakers  have  abused  it  badly.  There  is  no  Speaker's 
ruling,  moreover,  which  cannot  be  set  aside  by  a  majority 
of  the  House.  When,  therefore,  a  Speaker  is  permitted  to 
be  an  avowed  partisan,  the  dominant  party  must  share  the 
responsibility. 

For  a  long  period  the  power  upon  which  the  Speaker  2.  The  right 
chiefly  relied  as  a  means  of  guiding  legislation  was  the  right  committees. 
to  appoint  all  committees.  This  authority  was  cut  to  pieces 
during  the  congressional  revolution  of  1910-1911,  but  for 
many  decades  prior  to  that  time  it  was  a  source  of  great 
prestige  and  influence.  It  enabled  the  Speaker  to  organize 
all  the  important  committees  of  the  House  in  such  way 
that  he  and  his  party  were  maintained  in  absolute  control 
of  legislation  at  every  stage.  True,  the  Speaker  deferred 
in  most  cases  to  the  advice  of  the  party  leaders  and  to  the 
decisions  of  party  caucuses,  but  his  own  hand  was  always 
firmly  on  the  tiller.  He  became  in  newspaper  parlance  the 
"Czar  of  the  House."  Loud  murmurs  were  heard  from 
time  to  time  against  this  virtual  dictatorship,  as  wielded 
by  a  succession  of  strong  willed  Speakers  such  as  James  G. 
Elaine,  Samuel  J.  Randall,  John  G.  Carlisle,  Thomas  B. 
Reed,  and  Joseph  G.  Cannon ;  but  it  was  not  until  1910- 
1911  that  strong-headedness  in  the  Speaker's  chair  induced 
a  successful  revolt  against  the  old  arrangement. 

To  understand  this  important  change  in  the  Speaker's  Special 
authority,  however,  it  is  necessary  to  know  something  about  ^jj106 
the  influential  part  which  had  been  assumed  during  the  Speaker  as 
years  preceding  1910  by  one  small  committee  of  five  mem-  ^^aan 
bers,  the  Committee  on  Rules.     Originally  the  only  func-  Committee 
tion  of  this  committee,  with  the  Speaker  himself  as  chair-  c 
man,  was  to  prepare  and  to  recommend  a  set  of  rules  for 
the  House  at  the  beginning  of  each  Congress.     These  rules, 
which  were  usually  not  much  more  than  a  repetition  of 
the  ones  used  by  the  preceding  Congress,  served  for  the 
guidance  of  business  throughout  the  sessions.     Thus  the 
Committee  on  Rules  was  in  its  origin  a  special  or  select 
committee;    but  in  1880  it  became  a  regular  or  standing 


198      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

"revolu- 
tion of 
1910- 
1911." 


3.  The 
Speaker 
as  a  party 
leader. 


committee  with  the  function  of  considering  and  reporting 
upon  any  proposed  changes  in  the  rules  which  might  be 
made  during  the  sessions.  Finally,  in  1891,  it  was  given 
the  right  to  report  a  new  rule  at  any  time  or  for  any  purpose, 
thus  enabling  it  to  intervene  and  cut  a  knot  whenever  busi- 
ness in  the  House  should  become  tangled.  Out  of  this 
authorization  the  Committee  on  Rules,  with  the  Speaker 
as  its  chairman  and  dominating  spirit,  steadily  developed 
a  preponderating  influence,  amounting  at  times  to  a  practi- 
cal control  over  legislation.  With  the  Committee  on  Rules 
ready  to  do  his  bidding  and  a  majority  of  the  House  on  his 
side,  the  Speaker  could  secure  at  any  time  the  adoption  of  a 
special  rule  to  advance  measures  which  he  favored  or,  on  the 
other  hand,  to  retard  measures  which  he  opposed.  The 
"grand  remonstrance"  qf  1910  took  from  the  Speaker  the 
power  to  appoint  this  Committee  on  Rules,  increased  its 
membership  from  five  to  ten,  and  made  the  Speaker  ineligible 
to  a  place  on  it.  In  the  following  year  the  House  went  a 
step  further  and  made  provision  that  all  other  committees 
should  likewise  be  chosen  by  itself. 

The  House  of  Representatives  is  an  organ,  not  of  popular 
government  merely,  but  of  party  government.  The  Speaker 
is  the  choice  of  the  majority  party  ;  he  is  the  party 's  mentor. 
It  is  upon  him  that  the  party  depends  to  get  its  programme 
through.  "The  power  to  govern,  the  power  to  act  or  to 
force  action  when  the  House  desires,  and  thus  to  set  aside 
obstructions  and  suppress  those  who  would  prevent  the 
action  of  the  House,  —  this  power  must  be  lodged  centrally 
somewhere.  In  England  it  is  in  the  Cabinet,  that  is  the  cen- 
tral guiding  committee  who  manage  the  business  of  govern- 
ment." In  the  House  of  Representatives  it  is  the  Speaker 
and  his  fellow  party  leaders-  who  perform  this  function. 
The  real  question,  therefore,  is  not  whether  a  certain  measure 
can  worm  its  way  through  the  House  if  it  gets  a  chance. 
It  is  rather  the  question  whether  the  Speaker  and  the  other 
leaders  of  the  majority  party  ought  to  give  it  a  chance. 
As  the  recognized  head  of  his  party  in  the  House  the 
Speaker  must  be  to  some  extent  a  legislative  censor,  but 

1  J.  A.  Woodburn,  The  American  Republic  (2d  ed.,  N.  Y.,  1916), 
p.  269. 


ORGANIZATION  AND  PROCEDURE  199 

let  it  not  be  forgotten  that  two  things  have  combined  to 
make  him  so  :  first,  the  omission  in  the  constitution  of  any 
provision  for  official  legislative  leadership,  and,  second,  the 
development  of  party  responsibility  for  legislation.  Two 
things,  indeed,  there  must  be  in  every  well-ordered  govern- 
ment, leadership  and  responsibility.  The  constitution  did 
not  provide  a  means  of  supplying  them,  hence  usage  has 
stepped  in  to  fill  the  void. 

So  much  for  the  Speaker.  It  is  next  appropriate  to  say  The  com- 
something  about  the  committees  of  the  House,  their  organi-  ^1*^ees 
zation  and  the  work  which  they  do,  for  most  of  the  real  House, 
legislative  work  is  done  by  them.1  There  are  now  fifty- 
eight  regular  or  standing  committees  of  the  House,  but  at 
least  half  of  them  have  practically  nothing  to  do.  These 
inactive  committees  are  maintained  year  after  year  because 
the  chairmanship  of  a  committee,  however  unimportant, 
carries  with  it  certain  perquisites,  including  an  office  and 
stenographic  service.2  Out  of  the  entire  fifty-eight  commit- 
tees not  more  than  a  dozen  are  of  consistent  importance, 
while  perhaps  a  half  dozen  more  have  substantial  work 
to  do  on  infrequent  occasions.  The  most  important  com- 
mittees are  those  on  Appropriations,  Ways  and  Means, 
Rules,  Interstate  and  Foreign  Commerce,  Judiciary,  Post 
Offices  and  Post  Roads,  Military  Affairs,  Naval  Affairs, 
and  Agriculture.  The  temporary  prominence  of  some  par- 
ticular issue  may  give  some  other  committee  a  fleeting 
importance,  but  when  the  agitation  has  subsided,  the  com- 
mittee again  lapses  into  innocuous  desuetude.  In  addi- 
tion to  its  standing  or  regular  committees,  the  House  may 
also  establish  special  or  select  committees  to  deal  with  any 
particular  matter  which  may  arise  from  time  to  time 
outside  the  ordinary  run  of  business.  When  standing  and 
special  committees  are  appointed,  the  member  whose  name 
appears  first  on  the  list  is  chairman  and  presides  at  all 
committee  meetings.  The  rank  of  the  other  members  of 
each  committee  is  also  determined  by  the  order  in  which 
their  names  appear  on  the  committee  rolls. 

1  L.  G.  McConachie,  Congressional  Committees  (N.  Y.,  1898). 

2  For  example  the  Committee  on  the  Disposition  of  Useless  Papers, 
the  Committee  on  Mileage,  etc. 


200      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Committee 
of  the 
Whole. 


How 
places 
on  com- 
mittees are 
assigned. 


The  mech- 
anism by 
which 
assign- 
ments are 
made. 


Mention  should  also  be  made  of  one  other  congressional 
institution,  the  Committee  of  the  Whole.  This  is  merely 
the  entire  membership  of  the  House  sitting  as  a  great  com- 
mittee. There  are  several  important  differences,  however, 
between  the  House  in  Committee  of  the  Whole  and  in  regu- 
lar session.  In  Committee  of  the  Whole  the  Speaker  does 
not  preside,  but  calls  upon  some  member  to  act  as  chairman  ; 
the  strict  rules  of  procedure  do  not  apply;  one  hundred 
members  make  a  quorum;  there  are  no  roll-calls  on  any 
measure  under  consideration  —  in  a  word  the  arrangement 
enables  the  House  to  deliberate  informally.  Large  use  is 
made  of  this  facility,  and  the  House  probably  sits  a  larger 
number  of  hours  in  Committee  of  the  Whole  than  in  regular 
session. 

Places  upon  important  standing  committees  are  much 
sought  after.  What  factors  determine  who  shall  get  the 
most  coveted  assignments?  Length  of  service  counts 
for  a  great  deal,  more  than  any  other  single  factor.  Places 
on  important  committees  naturally  go  to  congressmen  of 
experience,  not  to  new  members.  The  chairmanships  go 
to  the  leaders  of  the  majority  party ;  indeed  it  is  sometimes 
said  that  the  chairmen  of  the  chief  committees  form  the 
closest  American  analogy  to  the  "members  of  the  govern- 
ment" in  the  House  of  Commons.  The  chairman  of  each 
committee  is  selected  as  a  rule  from  among  those  who  have 
in  previous  years  served  as  members  of  that  committee. 
The  senior  or  "ranking"  member  is  next  in  line  for  promo- 
tion, provided,  of  course,  that  his  party  continues  in  con- 
trol of  the  House.  So,  also,  members  of  minor  committees, 
after  doing  good  service  in  one  Congress,  if  reflected,  are 
deemed  entitled  to  promotion  in  the  next.  A  member's 
own  personal  preferences  are  also  ascertained  and,  so  far 
as  practicable,  respected. 

Subject  to  these  general  principles,  then,  this  is  what  now 

Jiappens :    first  of  all,  the  members  of  the  House,  each  in 

Itheir  own  party  caucus,  select  the  Committee  on  Ways  and 

(Means.     The  majority  party  selects  fourteen  members  of 

'this  committee,  while  the  minority  chooses  seven.     This 

Committee  on  Ways  and  Means  then  presents  for  adoption 

by  the  House  a  slate  of  all  the  other  committees.     On  every 


ORGANIZATION  AND  PROCEDURE  201 

Committee  the  dominant  party  is  invariably  given  a 
majority.  When  the  slate  is  presented,  the  House  usually 
accepts  it  without  any  material  change,  and  the  committees 
so  constituted  remain  intact  until  the  end  of  that  Congress, 
in  other  words  during  two  sessions. 

So  far  as  the  actual  composition  of  committees  is  con-  Service 
cerned,  too  much  weight  must  not  be  attached  to  the  changes  the  chfe 
of  1910-1911.     It  is  true  that  these  changes  impaired  the  factors. 
Speaker's    authority    considerably,    but    in    the    main   the 
members  of  the  House  get  just  about  the  same  committee 
assignments  to-day  that  they  would  have  obtained  before 
the  change  was  made.     Length  of  service,  personal  ability, 
amenability  to  party  discipline,  willingness  to  work  har- 
moniously   with    others  —  these    things    rather    than    the 
vagaries  of  either  Speakers  or  caucuses  have  always  deter- 
mined and  are  always  likely  to  determine  whether  a  congress- 
man will  be  placed  high  up  or  low  down  on  the  list,  no  matter 
what  the  rules  may  provide.     In  that  respect   Congress 
is  no  different  from  any  other  body  of  sensible  men. 

The  functions  and  powers  of  the  committees  may  best  Work  of 
be  made  clear,  perhaps,  by  a  brief  explanation  of  the  way  ^^^ 
in  which  bills  are  dealt  with,  step  by  step.     In  the  first  i.  HOW 
place  any  member  of  the  House  may  present  a  bill  or  draft  !>ills  are 
of  a  proposed  law.     It  may  be  one  that  he  himself  has  dUed. 
prepared  and  favors,  or  it  may  be  one  that  any  outside  indi- 
vidual or  organization  has  asked  him  to  introduce.     The 
procedure   is    simplicity   itself;     the    congressman   merely 
writes  his  name  on  the  bill  and  places  it  in  a  box  at  the  clerk's 
desk.     Thousands  of  bills  are  put  in  during  the  opening 
days  of  each  session.     This  freedom  with  which  bills  may  be 
introduced   has   both    good    and   bad   features.     It    gives 
reality  to  the  citizen's  constitutional  right  of  petition  and 
perhaps   encourages   the   putting  forth   of  new  legislative 
ideas.     On  the  other  hand,  it  permits  Congress  to  be  deluged 
with  all  manner  of  eccentric  proposals  which  have  no  chance 
whatever  of  being  adopted. 

Presently  all  these  bills  are  sorted  out  and  are  referred,  2.  Refer- 
under  the  rules  of  the  House,  to  appropriate  committees.  £msto 
If  there  is  any  doubt  as  to  what  committee  should  have  a  commit- 
particular  bill,  the  Speaker  decides.     If  a  measure  is   of  tees* 


202      THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.    Com- 
mittee 
hearings. 


4.    What 
action  the 
committee 
may  take. 


great  importance,  the  committee  to  which  it  is  referred  may 
assign  it  for  preliminary  consideration  to  a  sub-committee. 
The  work  of  these  sub-committees  has  become  increasingly 
important  in  recent  years  and  in  many  cases  the  real 
work  of  getting  measures  in  shape  for  presentation  to 
Congress  is  performed  by  them.  Committee  proceed- 
ings are  usually  public,  but  executive  sessions  may 
be  held  when  desired.  In  any  case  the  committee  or 
sub-committee  will  hear  all  who  want  to  be  heard  either 
for  or  against  the  bill.  This  is  done  as  a  matter  of 
courtesy,  not  of  constitutional  or  legal  right ;  but  the 
opportunity  to  be  heard  is  practically  never  denied  to  any 
one.  If  many  persons  desire  to  appear  before  the  committee, 
the  hearings  may  last,  day  after  day,  for  weeks.  Com- 
mittees usually  sit  in  the  forenoon,  and  no  committee,  except 
the  Committee  on  Rules,  may  hold  meetings  while  the 
House  is  in  session  unless  it  secures  special  permission 
•from  the  House  itself.  During  these  hearings  a  record  of 
the  proceedings  is  kept  by  the  clerk  of  each  committee. 
When  a  hearing  is  finished,  the  committee  decides,  either  at 
once  or  on  a  later  day,  what  report,  if  any,  it  will  make  to 
the  House  on  the  measure. 

Several  courses  are  open  to  any  committee  with  refer- 
ence to  a  bill  which  it  has  had  under  consideration.  It  may 
favorably  report  a  bill  just  as  it  stands.  In  that  case  the 
measure  will  have,  under  ordinary  conditions,  a  good  chance 
of  passing,  especially  if  the  favorable  recommendation  of 
the  committee  is  made  unanimously.  Or,  again,  the  com- 
mittee may  approve  the  bill  in  some  points  but  not  in  others. 
In  that  case  it  may  redraft  the  measure  and  report  it  favor- 
ably in  a  new  form.  Here  too  the  chances  of  passage 
are  good.  When  a  favorable  report  is  made  upon  any 
measure,  either  in  its  original  or  revised  form,  the  report 
goes  to  the  Clerk  of  the  House,  who  enters  it  upon  the  journal, 
and  in  due  course  it  is  set  upon  one  of  the  calendars  for  a 
first  reading.  Certain  committees  have  the  privilege  of 
reporting  at  any  time  directly  from  the  floor  of  the  House, 
although  this  is  now  not  usually  done. 

But  in  the  great  majority  of  cases  the  committee  will  not 
be  favorably  impressed  with  the  measure  at  all,  in  which 


ORGANIZATION  AND  PROCEDURE  203 

case  it  usually  makes  no  report  whatever.  Over  twenty 
thousand  bills  are  introduced  at  each  session  of  Congress, 
but  the  great  majority  of  these  have  not  the  slightest  chance 
of  ever  "coming  out  of  committee."  The  simplest  way 
to  kill  any  proposal  is,  therefore,  to  have  a  committee 
refrain  from  reporting  it,  because  no  bill  can  be  acted 
upon  by  the  House  until  a  committee  sends  it  up.  Since 
1910  it  has  been  possible,  in  certain  cases,  for  the  House 
to  call  up  a  bill  from  the  hands  of  a  committee  and 
proceed  to  action  upon  it ;  but  this  is  very  rarely  done. 
While  favorable  action  by  a  committee  does  not,  therefore, 
mean  that  a  bill  is  assured  of  passage,  adverse  action,  which 
is  no  action  at  all,  is  automatic  execution.  Most  bills  are 
guillotined  by  committees,  as  indeed  they  ought  to  be. 
The  committees  of  Congress  are,  therefore,  the  great 
sifters  of  legislative  proposals.  Without  them  the  introduc- 
tion of  bills  would  have  to  be  rigidly  limited  or  the  whole 
mechanism  of  law-making  would  soon  become  hopelessly 
clogged. 

When  a  measure  is  reported  to  the  House  by  a  committee,  Procedure 
it  is  placed  on  one  of  the  calendars  so  that  it  will  be  given  gj^.     ' 
its    various    readings    and    voted    upon.     There  are  three  la  The 
calendars.     One  of  them,  known  as  the  Union  Calendar,1  calendars, 
contains  all  favorably  reported  measures  relating  to  revenue, 
appropriations,  and  public  property.     A  second,  called  the 
House  Calendar,  includes  all  public  bills  not  included  in  the 
foregoing   category.     The   third,   known   as  the   Calendar 
of  the  Committee  of  the  Whole,  or  the  Private  Calendar, 
makes  a  place  for  all  measures  of  a  private  character.     Mat- 
ters on  each  calendar  are  not  necessarily,  or  even  usually, 
taken  up  in  order ;  they  may  be  called  up  out  of  turn. 

At  every  daily  session  there  is  a  "  morning  hour,"  so-called  2.  Calling 
(it  may  be  an  hour  or  a  whole  day),  for  the  consideration  of  up  blUs" 
general  bills  called  up  from  one  of  the  calendars  by  com- 
mittees which  have  favorably  reported  upon  them.     Then, 
if  time  permits,  the  House  goes  into  Committee  of  the  Whole 
to  discuss  revenue  or  appropriation  bills,  or,  failing  these, 
some  other  public  bills  on  the  House  Calendar.     The  regu- 

1  Its  full  title  is  "Calendar  of  the  Whole  House  on  the  State  of  the 
Union," 


204      THE  GOVERNMENT  OF  THE  UNITED  STATES 

lar  order  of  business  is  frequently  interrupted,  however, 
by  reports  from  privileged  committees,  by  the  established 
practice  of  setting  aside  certain  days  each  month  for  the 
consideration  of  particular  matters,  or  by  the  discussion  of 
business  brought  in  under  a  suspension  of  the  rules  which 
the  House  can  authorize  at  any  time  by  a  two-thirds  vote. 
It  is  desirable,  moreover,  that  important  measures,  usually 
those  which  provide  money  for  urgent  purposes,  may  on 
necessary  occasions  gain  the  right  of  way,  and  this  is  secured 
by  the  action  of  the  Committee  on  Rules,  which  may  report 
a  specialrule  putting  such  bills  ahead  of  other  business. 

3.  The  Every  bill,  of  whatever  sort,  must  have  three  readings 
readings        ^n  ^ne  House.     The  first  reading  is  by  title  only  ;  the  second 

is  a  reading  of  the  whole  measure,  and  at  this  stage  amend- 
ments may  be  offered;  the  third  reading  is  also  by  title 
unless  some  member  requests  that  it  be  again  read  in  full, 
which  hardly  ever  happens.  If  the  measure  passes  to  its 
third  reading,  it  is  engrossed  and  must  go  through  a  further 
•formal  stage  of  being  finally  passed  by  the  House  before  it 
is  sent  to  the  Senate  for  concurrence.  Four  methods  of 
voting  are  used.  The  common  plan  is  by  viva  voce  vote. 
Any  member  may  doubt  the  result  and  call  for  a  rising 
vote.  If  a  certain  number  of  members  so  demand,  the  vote 
is  again  taken  by  tellers  who  are  appointed  by  the  Speaker. 
The  members  pass  between  the  tellers  and  are  counted. 
Finally,  the  constitution  provides  that  if  one-fifth  of  the 
members  ask  for  it,  the  ayes  and  nays  shall  be  recorded. 
A  roll-call  must  always  take  place  when  the  passing  of  any 
measure  over  the  President's  veto  is  being  decided. 

The  debate  on  a  bill  almost  invariably  takes  place  upon 
the  question  of  ordering  it  to  a  third  reading,  although  it 
sometimes  continues  upon  the  question  of  final  passage. 
Reconsideration  may  also  be  asked  for  after  the  House 
has  voted  at  either  of  these  stages.  When  the  measure 
succeeds  in  running  this  entire  gantlet  of  readings  and 
votes,  it  does  not  become  a  law,  of  course,  but  merely  goes 
to  the  Senate,  where  substantially  a  similar  course  of  pro- 
cedure is  encountered. 

4.  The  When  a  bill  is  reached  on  one  of  the  House  calendars  or  is 
debate.         called  up  out  of  turn,  the  usual  practice  is  for  the  chairman 


ORGANIZATION  AND  PROCEDURE  205 

or  some  other  member  of  the  committee  which  has  reported 
it  favorably  to  open  the  debate.  If  the  favorable  report 
has  not  been  made  unanimously,  some  minority  member 
of  the  committee  then  follows  with  a  speech  in  opposition. 
When  members  of  the  committee  have  had  their  say,  other 
congressmen  are  recognized  in  their  turn,  and  thus  the  debate 
runs  on.  No  member  may  address  the  House  for  more_ 
than  one  hour  without  unanimous  Consent,  and.  when  the 
House  is  in  (JornrniTfee~^f~tte  Whole,  speecnes  are  limited 
to  five  minutes  only.  If  there  is  any  likelihood  of  a  long 
debate,  it  is  customary  for  the  House,  by  unanimous  consent 
at  the  beginning  of  the  discussion,  to  fix  a  time  at  which  a 
vote  will  be  taken.  The  previous  question  may  also  be 
moved  at  any  time  as  a  means  of  bringing  a  debate  to  a 
close.  The  best  discussions  do  not  take  place  when  the 
House  is  in  regular  session,  but  in  Committee  of  the  Whole, 
under  the  five  minute  rule.  This  is  because  short,  snappy 
speeches,  with  members  answering  quickly  the  arguments 
of  each  other,  hold  the  attention  of  the  House,  while  long 
and  carefully  prepared  addresses  do  not. 

When  the  House  has  finished  with  a  measure,  it  goes,  Bills  sent 
as  has  been  said,  to  the  upper  chamber.     What  may  the  g^atefor 
Senate  do  with  it  ?     It  may  do  any  one  of  three  things  :  concur- 
It  may  pass  the  measure  without  change. I  «It  may  defeat  rence- 
it  or  let  it  die  in  committee.     Or  it  may  pass  the  measure 
after  making  some  amendments.     In  this  last  case  the  bill 
must  come  back  to  the  House  for  a  vote  on  the  amendments  ; 
if  the  House  accepts  them,  well  and  good,  but  if  it  declines 
to  accept  the  Senate's  amendments,  the  usual  plan  is  to  ask 
for  a  Committee  of  Conference.     This  is  usually  made  up  of 
three  members  from  each  chamber,  and  its  function  is  to 
reach  some  agreement  by  way  of  compromise.     Conference  Conference 
committees  meet  behind  closed  doors,  and  the  matters  dealt  committees- 
with  are  only  those  upon  which  the  two  Houses  have  failed 
to  agree.     The  committee  is  not  supposed  to  touch  provisions 
which  have  been  accepted  by  both.     As  a  rule  the  conferees 
from  each  chamber  make  mutual  concessions  and  in  that 
way  secure  a  meeting  of  minds.     If  the  committee  can  reach 
an  agreement,  the  two  Houses  usually  accept  their  recom- 
mendation ;   if  they  cannot  agree,  the  measure  fails.     Noth- 


206      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  final 
steps  in 
congres- 
sional 
legislation. 


The  House 
of  Repre- 
sentatives 
compared 
with  the 
House  of 
Commons. 


ing  can  become  a  law  unless  both  Houses  have  concurred 
on  every  point. 

When  a  bill  has  passed  its  various  stages  in  both  cham- 
bers, it  is  " enrolled"  or  written  on  parchment.  It  is  then 
signed  by  the  Speaker  of  the  House  and  the  presiding  officer 
of  the  Senate,  after  which  it  is  laid  before  the  President  for 
his  approval  or  veto.  If  signed  by  the  President,  it  goes 
to  the  archives  of  the  State  Department  and  in  due  course 
is  published  in  the  statute  book. 

The  powers  of  the  House  and  the  Senate  in  law-making 
are  exactly  the  same,  save  for  the  exceptions  already  noted, 
namely,  that  the  House  has  by  constitutional  provision  the 
sole  right  to  originate  bills  for  raising  revenue,  and  by  usage 
it  has  acquired  the  exclusive  power  to  initiate  appropriations. 
But  the  Senate  may  amend  bills  of  either  sort,  even  to  the 
extent  of  making  practically  new  measures  out  of  them. 

Comparing  the  House  of  Representatives  with  the  House 
of  Commons,  some  striking  similarities  and  contrasts  come 
into  view.  Both  do  most  of  their  work  through  committees, 
and  the  general  procedure  followed  in  the  passing  of  measures 
is  in  both  substantially  alike.  But  in  Congress  no  broad 
distinction  is  made  between  public  and  private  bills.  All 
are  dealt  with  in  the  same  way.  In  parliament  there  is  a 
special  procedure  for  private  bills,  that  is,  for  those  which 
concern  only  an  individual  or  an  organization  or  a  local- 
ity, and  which  accordingly  are  not  deemed  to  be  of  gen- 
eral importance.  Relatively  little  time  is  devoted  in  the 
House  of  Commons  to  this  category  of  measures,  and 
hence  more  time  is  left  for  the  consideration  of  general 
laws.  This  permits  and  encourages  more  discussion  and 
debate  in  the  English  chamber.  The  great  powers  of  Con- 
gress, again,  are  almost  equally  shared  by  the  two  chambers, 
while  in  parliament  the  lower  chamber  has  long  been  domi- 
nant, and  since  1911  it  has  become  potentially  supreme. 
The  presence  of  executive  officers  in  parliament  and  their 
absence  in  Congress  is  another  striking  difference  and  one 
which  has  far-reaching  results  upon  the  course  of  business. 
Finally,  and  perhaps  most  important  of  all,  the  members 
of  the  House  of  Commons  and  of  the  House  of  Representa- 
tives are  alike  ranged  into  two  well-defined  and  relatively 


ORGANIZATION  AND  PROCEDURE  207 

permanent  party  divisions,  one  supporting  and  the  other 
opposing  the  administration.  It  is  this  phenomenon  more 
than  any  other  that  betrays  the  kinship  of  the  two  great 
English-speaking  organs  of  popular  government.  It  is 
this  unified  party  system  which  differentiates  them  both 
from  the  parliaments  of  Continental  Europe.  The  House 
of  Representatives  was  created  in  conscious  imitation  of 
the  House  of  Commons.  In  its  traits  and  temperament, 
if  not  in  its  external  features,  it  bears  unmistakably  the 
marks  of  its  parentage. 


CHAPTER  XIV 


in  the 
United 

States. 


THE   GENERAL  POWERS   OF  CONGRESS 

The  law  of  THE  Senate  and  the  House  of  Representatives  together 
constitute  the  Congress  of  the  United  States,  which  is  the 
law-making  department  of  the  national  government,  the 
organ  through  which  the  people  frame  and  declare  the 
policies  of  the  nation.  But  this  power  of  the  people  to 
declare  through  their  representatives  in  Congress  the  laws 
by  which  they  wish  to  be  governed  is  not  an  unlimited 
power.  Unlimited  power  cannot  be  exercised  by  any  arm 
of  the  national  government,  executive,  legislative,  or  judi- 
cial, or  even  by  all  three  acting  together.  Limitations  there 
are  to  a  greater  extent  than  in  any  other  country,  and  the 
greatest  of  these  limitations  upon  the  powers  of  Congress 
arises  from  the  theory  of  the  constitution  itself. 

The  powers  The  constitution  of  the  United  States,  as  has  been  already 
shown,  is  a  grant  or  delegation  of  powers.  In  that  respect 
it  differs  from  the  constitutions  of  the  several  states,  for 
in  the  latter  all  powers  accrue  as  an  incident  of  their  original 
sovereignty.  By  the  national  constitution  Congress  gets 
only  what  is  therein  given  ;  by  the  state  constitutions  every 
state  legislature  gets  whatever  is  not  expressly  taken  away. 
In  the  case  of  Congress  the  appropriate  question  is :  Has 
the  power  been  granted  ?  In  the  case  of  a  state  legislature 
it  is :  Has  the  power  been  handed  over  to  the  national 
government,  or  limited,  or  withdrawn?  This  difference 
is  of  vital  importance,  so  much  so  that  even  a  repeated 
mention  of  its  existence  may  be  pardoned.  Without 
^having  it  constantly  in  mind  there  can  be  no  proper  under- 
standing of  the  way  in  which  Congress  acts  or  of  the  limita- 
tions that  surround  its  sphere  of  action.  The  government 
of  the  United  States  has  no  powers  ex  proprio  vigore,  none 

208 


delegated 
powers. 


THE  GENERAL  POWERS  OF  CONGRESS     209 

save  such  as  are  expressly  or  by  reasonable  implication 
conveyed  to  it  by  the  terms  of  the  constitution.  The  con- 
stitution is  the  source,  and  the  sole  source,  of  all  its 
authority. 

Never  has  this  principle  been  more  clearly  or  cogently  Jefferson's 
stated  than  in  the  writings  of  Thomas  Jefferson.  "To  take 
a  single  step  beyond  the  boundaries  thus  specifically  drawn 
around  the  powers  of  Congress,"  wrote  the  great  Virginian, 
"is  to  take  possession  of  a  boundless  field  of  power  no  longer 
susceptible  of  any  definition.  The  government  created 
by  the  constitution  was  not  made  the  exclusive,  or  final, 
judge  of  the  extent  of  the  powers  delegated ;  since  that 
would  have  made  its  discretion  and  not  the  constitution 
the  measure  of  its  powers."  This  doctrine  has  been 
upheld  by  the  Supreme  Court  for  over  one  hundred  years, 
and  it  is  not  now  open  to  controversy. 

It  is  true  that  the  doctrine  of  "inherent  powers"  has  at  The  con- 
various    times    been    set   forth    as  justifying  the  exercise  *rai7. 

.—  i  •    i        -i  ..  ,  doctrine  of 

by  Congress  of  powers  which  the  constitution  does  not  "inherent" 
either  expressly  or  by  implication  convey  ;  but  that  doctrine  P°wers- 
is  not  constitutionally  sound.  The  Supreme  Court,  to  be 
sure,  has  not  been  unequivocal  in  repudiating  this  theory 
that  the  national  government  possesses  certain  powers 
which  are  deducible  from  the  simple  fact  of  national  sover- 
eignty, and  at  times  has  used  language  which  at  least  sug- 
gests that  the  theory  has  some  color  of  validity.  But  the 
court  has  never  yet  justified  any  act  of  Congress  on  the 
ground  of  inherent  powers.  It  has  always  found  some  war- 
rant, either  express  or  implied,  in  the  constitution  itself.1 

Until  the  several  states  accepted  the  Articles  of  Confeder-  First  step 
ation  each  was  sovereign  and  unrestricted  in  its  freedom  of  delegation 
action.     Each  was  free  to  do  as  it  pleased,  to  wage  war  or  of  powers: 
make  peace  independently  if  it  so  chose,  to  coin  money,  ^icleg 
issue  bills  of  credit,   conclude  treaties,   establish  a  tariff,  ofConfed- 
maintain  its  own  postal  service,  even  to  set  up  a  monarchy  eratlon- 
if  it  so  desired.2    But  upon  ratifying  the  Articles  of  Confed- 

1  W.  W.  Willoughby,  Constitutional  Law  of  the  United  States  (2  vols., 
N.  Y.,  1910),  pp.  67-69. 

2  This,  at  any  rate,  is  the  author's  conviction.     For  a  statement  of  the 
evidence  which  leads  to  such  conclusion,  see  Roger  Foster,  Commentaries 
on  the  Constitution  of  the  United  States  (Boston,  1895),  pp.  63-70.     For  a 


210      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Second  and 
final  step 
in  the 
delegation 
of  powers : 
the    Consti- 
tution. 


The  delega- 
tion of 
powers 
was  made 
in  per- 
petuity. 


eration  during  the  years  1777  to  1781  eacli  of  the  thirteen 
states  gave  up,  in  the  general  interest,  a  certain  amount  of 
this  freedom.  They  all  agreed,  for  example,  that  none 
would  make  treaties  separately ;  they  agreed  to  contribute 
men  and  money  to  the  common  cause  when  called  upon  by 
the  Congress  of  the  Confederation,  to  maintain  a  common 
postal  service,  and  to  do  various  other  things  together. 
But  they  still  remained  sovereign  states,  for  these  conces- 
sions, even  when  taken  all  together,  were  not  a  serious  im- 
pairment of  their  sovereignty.1 

By  accepting  the  constitution  of  1787,  however,  the  sev- 
eral states  took  a  far  more  important  step.  They  surren- 
dered powers  of  greater  variety  and  extent.  The  nature  of 
the  change  was  clearly  expressed  by  Chief  Justice  Marshall 
in  one  of  his  great  decisions:  "It  has  been  said  that  they 
(the  states)  were  sovereigns,  were  completely  independent, 
and  were  connected  with  each  other  only  by  a  league.  This 
is  true.  But  when  these  allied  sovereigns  converted  their 
league  into  a  government,  when  they  converted  their  con- 
gress of  ambassadors,  deputed  to  deliberate  on  their  common 
concerns,  and  to  recommend  measures  of  general  utility, 
into  a  legislature,  empowered  to  enact  laws  on  the  most 
interesting  subjects,  the  whole  character  in  which  the  states 
appear  underwent  a  change,  the  extent  of  which  must  be 
determined  by  a  fair  consideration  of  the  instrument  by 
which  the  change  was  effected."  2  They  gave  up,  in  fact, 
some  of  the  most  important  prerogatives  of  sovereignty, 
and  although  we  still  speak  of  them  as  sovereign  states, 
they  are  not  in  a  strictly  juristic  sense  entitled  to  be  so 
termed.  They  are  sovereign  within  their  own  residual 
sphere  of  action,  and  there  alone. 

There  is  no  denying  that  the  states  gave  up  large  powers 
when  they  accepted  the  federal  constitution.  Did  they, 
however,  surrender  these  powers  to  the  national  government 

contrary  view,  see  Albert  Bushnell  Hart,  National  Ideals  Historically 
Traced  (N.  Y.,  1907),  p.  136. 

1  "  Each  state  retains  its  sovereignty,  freedom,  and  independence,  and 
every  power,  jurisdiction,  and  right  which  is  not  by  this  Confederation 
delegated  to  the  United  States  in  Congress  assembled,"  —  Articles  of  Con- 
federation, Article  ii. 

2  Gibbons  vs.  Ogden,  9  Wheaton,  1. 


THE  GENERAL  POWERS  OF  CONGRESS  211 

forever,  or  did  each  state  impliedly  reserve  the  right  to 
resume  them  at  some  future  time  if  circumstances  should 
so  dictate  ?  That  is  a  question  which  bulked  large  in  Ameri- 
can political  controversy  during  the  decades  preceding  the 
Civil  War.  Could  a  state,  in  other  words,  nullify  a  power 
given  by  the  constitution  to  Congress  by  insisting  upon  its 
own  interpretation  as  to  what  such  power  was  meant  to 
include?  Could  a  state  secede  from  the  Union  and  thus 
resume  its  full  sovereignty  ?  These  two  questions,  involving 
respectively  the  right  of  nullification  and  the  right  of  seces- 
sion, were  eventually  answered,  not  by  political  philosophers 
or  jurists  but  by  the  logic  of  events. 

South  Carolina  in  1832  asserted  its  famous  policy  of  nulli-  Nuiiffica- 
fication  based  upon  the  contention  that  whenever  Congress  d 

ventured  to  transcend  the  limits  of  power  granted  to  it 
by  the  constitution,  any  state  was  at  liberty  to  declare  such 
action  unauthorized  and  null.  This  doctrine  found  its 
protagonist  in  John  C.  Calhoun.1  In  his  interpretation 
the  constitution  gave  the  various  states  a  "negative  power, 
the  power  of  preventing  or  arresting  the  action  of  the  govern- 
ment, be  it  called  by  what  term  it  may  —  veto,  interposition, 
nullification,  check,  or  balance  of  power."  Acting  upon 
this  conception  of  ultimate  state  sovereignty,  South  Caro- 
lina in  1832  attempted  by  ordinance  to  nullify  certain  acts 
of  Congress.  The  federal  authorities  under  President  Jack- 
son's sponsorship  promptly  took  up  this  gage  of  battle,  and 
in  the  end  South  Carolina  receded  from  her  position  of 
defiance. 

The  question  as  to  whether  a  state  had  the  right  not  Secession  — 
merely  to  refuse  obedience  to  acts  of  Congress  but  to  with-  j^™16 
draw  from  the  Union  altogether  and  thus  to  repudiate  the  problem, 
compact  of  1787  came  to  the  front  in  a  much  more  serious 
form  twenty  or  more  years  later.     Threats  of  secession  had 
been  made  by  various  states  from  time  to  time  during  the 
first  half  of  the  nineteenth  century,  but  it  was  not  until  De- 
cember 20, 1860,  that  any  state  took  the  actual  step  of  seced- 
ing.    On  that  date  South  Carolina  once  again  took  the  initia- 

1  For  a  full  statement  of  the  doctrine,  see  his  State  Papers  on  Nullifica- 
tion (1834) ;  also  David  F.  Houston's  Critical  Study  of  Nullification  in 
South  Carolina  (N.  Y.,  1896). 


212      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Claims  of 
the  seces- 
sionists. 


The  Civil 
War  settled 
the 
question. 


Perpetual 
nature  of 
the  Union 
established. 


Summary 
of  the  con- 
stitutional 
bases  of 
congres- 
sional 
powers. 


tive  with  the  issue  of  a  declaration  that  "the  union  now  sub- 
sisting between  South  Carolina  and  other  states  under  the 
name  of  the  United  States  of  America  is  hereby  dissolved." 
Within  a  few  months  ten  other  southern  states  took 
similar  action. 

The  right  to  secede  from  the  Union  and  thus  to  reacquire 
all  the  powers  which  had  been  surrendered  to  Congress 
in  1787  was  based  upon  several  contentions  which  need  not 
be  enumerated  here.  They  may  be  epitomized  in  the  claim 
that  the  constitution  was  nothing  more  than  a  treaty  or 
compact  among  the  states,  and  that  the  violation  of  its 
terms  or  spirit  by  some  of  the  states  freed  the  others  from 
the  obligation  of  being  further  bound  by  it.1 

During  the  years  preceding  the  Civil  War  this  question 
was  discussed  from  many  angles,  but  to  no  solution.  Nor 
was  it  one  that  could  be  settled  by  any  reference  to  clear 
understandings  at  the  time  the  constitution  was  adopted. 
The  constitution  itself  is  silent  on  this  point.  Nothing 
was  said  about  it  in  the  convention  of  1787  and  practically 
nothing  during  the  discussions  while  the  campaign  for  rati- 
fication was  under  way.  The  matter  was  not  then  of  imme- 
diate interest.  So  men  argued  bitterly  about  it,  went  to 
war  over  it,  and  finally  settled  it  at  Appomattox. 

Since  1865,  therefore,  this  stormy  petrel  of  American 
politics  has  been  at  rest.  No  state  has  the  right  to  take 
back  any  of  the  powers  or  functions  which  it  agreed  to  give 
to  the  national  government  by  the  compact  of  1787.  These 
powers  form  the  permanent  endowment  of  Congress.  They 
can  be  withdrawn  in  one  way  only,  that  is  by  the  concurrence 
of  three-fourths  of  the  states  as  provided  in  the  constitution. 

Three  points,  accordingly,  are  now  well  established  in 
American  constitutional  jurisprudence.  First,  that  the 
constitution  is  a  grant  or  delegation  of  powers  and  that 
Congress  has  no  lawmaking  authority  save  as  is  therein 
conveyed ;  second,  that  within  its  own  legislative  sphere, 
as  delimited  by  the  constitution,  the  authority  of  Congress 

1  Jefferson  Davis,  President  of  the  Confederacy,  in  his  message  to  the 
Congress  of  the  Confederate  States  (April  29,  1861)  gave  a  full  statement 
of  the  secessionist  doctrine.  This  is  elaborated  in  his  Rise  and  Fall  of 
the  Confederate  Government  (N.  Y.,  1881),  i,  pp.  1-258. 


THE  GENERAL  POWERS  OF  CONGRESS  213 

is  supreme ;  and,  third,  that  no  state  has  the  right  to  nullify 
this  supremacy  by  a  refusal  of  obedience  or  to  withdraw 
from  the  jurisdiction  of  the  federal  government. 

Turning  now  to  the  actual  powers  of  Congress,  these  The  ciassi- 
may  be  classified  in  various  ways.     One  method  of  classi-  fhe^owers 
fication  is  in  accordance  with  the  form  in  which  they  are  of  Congress, 
granted,    whether    in    express    terms    or    by    implication. 
Another  is  according  to  the  degree  of  obligation  imposed  by 
various  powers,  in  other  words  whether  they  are  permissive 
or  mandatory.     Finally,  and  most  significant,  is  the  classi- 
fication of  the  powers  of  Congress  according  to  their  scope, 
nature,  and  importance. 

Does  Congress  possess  only  those  powers  which  are  Express 
granted  by  the  constitution  in  express  terms?  Or  does  ^dlied 
Congress  also  possess  powers  which,  though  not  expressly  powers, 
granted,  may  be  reasonably  implied?  This  was  a  point 
of  clash  between  the  Federalists  and  the  Anti-Federalists'1 
during  the  early  years  of  the  Union.  Hamilton  and  the 
Federalists  argued  that  there  should  be  no  strict  construc- 
tion of  the  constitution's  terse  phraseology,  and  that  where 
an  express  power  had  been  granted,  this  should  be  construed 
to  carry  with  it  any  authority  desired  by  Congress  to  make 
such  power  effective.  "Is  the  end  included  within  the 
expressed  powers  ?  "  asked  Hamilton.  "  If  it  is  so  included, " 
he  answered,  "the  means  requisite  and  fairly  applicable  are 
constitutional."  The  Federalists  thus  related  their  conten- 
tion chiefly  to  that  clause  of  the  constitution  which  confers 
on  Congress  the  right  "to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution"  the 
powers  expressly  granted.  The  Anti-Federalists  took  the 
opposite  ground,  maintaining  that  the  long  enumeration 
of  express  powers  granted  to  Congress  in  the  constitution 
was  meant  to  be  complete  and  that  nothing  should  be  added 
by  implication.  Between  these  divergent  views  the  Supreme 
Court,  in  one  of  its  notable  decisions  a  century  ago,  took  a 
stand  which  involved  a  near  approach  to  the  Federalist 
claim.  "The  sound  construction  of  the  constitution," 
said  Chief  Justice  Marshall  in  this  decision,  "must  allow 
to  the  national  legislature  that  discretion  with  respect  to 
the  means  by  which  the  powers  it  confers  are  to  be  carried 


214      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Scope  of  the 

"implied" 

powers. 


Mandatory 
and 

permissive 
powers. 


into  execution,  which  will  enable  that  body  to  perform  the 
high  duties  assigned  to  it  in  a  manner  most  beneficial  to  the 
people.  Let  the  end  be  legitimate,  let  it  be  within  the  scope 
of  the  constitution,  and  all  means  which  are  appropriate, 
which  are  plainly  adapted  to  that  end,  and  which  are  not 
prohibited  but  are  consistent  with  the  letter  and  spirit 
of  the  constitution  are  constitutional."  1  The  doctrine  of 
implied  powers  was  thus  given  legal  recognition,  and  it  is 
now  a  well-established  principle  of  American  constitutional 
interpretation. 

Some  of  the  most  important  functions  which  the  federal 
government  performs  to-day  have  their  basis  in  " implied" 
powers.  The  right  of  Congress  to  provide  for  the  estab- 
lishment and  supervision  of  national  banks,  for  example, 
is  not  an  express  power.  It  is  implied,  or  at  any  rate  has 
been  held  by  the  Supreme  Court  to  be  implied,  in  the  express 
power  "to  borrow  money  on  the  credit  of  the  United  States." 
The  right  of  Congress  to  authorize  the  enforcement  of 
wheatless  and  meatless  days  in  war-time  or  to  compel  the 
shutting  down  of  stores  and  industries  in  order  to  conserve 
the  fuel  supply  is  nowhere  expressly  granted  in  the  constitu- 
tion. It  is  implied,  however,  in  the  express  power  "to  raise 
and  support  armies."  Nor,  again,  does  the  constitution 
expressly  give  Congress  the  right  to  own  and  operate  rail- 
roads, yet  this  authority  may  be  and  doubtless  is  implied 
in  the  power  "to  establish  post-offices  and  post-roads"  or 
in  the  power  to  regulate  commerce  among  the  several 
states.  The  power  to  establish  carries  with  it  the 
power  to  maintain ;  and  the  power  to  regulate  carries 
with  it  the  authority  to  choose  any  agencies  of  regulation 
which  are  in  fact  adapted  to  the  end  in  view. 

The  powers  of  Congress,  as  expressly  or  by  implication 
granted  in  the  constitution,  are  for  the  most  part  permissive 
in  character.  That  is  to  say,  Congress  may  exercise  them 
or  may  not  as  it  sees  fit.  It  may  make  use  of  them  much, 
little,  or  not  at  all.  The  clause  which  provides  that  Con- 
gress "shall  have  power  ...  to  borrow  money"  does  not, 
obviously,  mean  that  Congress  shall  borrow  money  whether 
the  country  is  in  need  of  it  or  not.  But  on  the  other  hand, 
1  McCulloch  vs.  Maryland,  4  Wheaton,  316. 


THE  GENERAL  POWERS  OF  CONGRESS  215 

there  are  some  powers  which  notwithstanding  their  permis- 
sive phraseology  are  mandatory  in  effect.  Wherever,  for 
example,  some  action  on  the  part  of  Congress  is  necessary 
to  make  any  provision  of  the  constitution  effective,  it  can 
hardly  be  maintained  that  the  function  of  Congress  is  a 
discretionary  one.  To  give  an  illustration :  the  constitu- 
tion provides  that  the  Supreme  Court  shall  have  appellate 
jurisdiction  "  under  such  regulations  as  Congress  shall  make." 
But  if  Congress  should  not  make  any  regulations,  the  court 
would  have  no  appellate  jurisdiction  at  all  and  the  entire 
judicial  system  would  be  dislocated.  Again,  the  constitu- 
tion provides  for  a  re-apportionment  of  representatives 
after  each  decennial  census,  this  census  or  enumeration  to 
be  taken  in  such  manner  as  Congress  shall  by  law  direct. 
But  if  Congress  should  fail  to  provide  the  machinery  and 
the  money  for  taking  the  census,  the  re-apportionment 
prescribed  by  the  constitution  could  not  be  made.  Con- 
gress is,  therefore,  under  constitutional  obligation  to  make 
use  of  its  powers  in  such  cases.  If  it  should  decline  to  do 
so,  however,  there  is  no  way  of  applying  compulsion.  The 
Supreme  Court  will  not  order  Congress  to  pass  a  law. 
No  judicial  body  in  any  country  has  power  to  compel  the 
enactment  of  a  law,  no  matter  how  remiss  the  legislature 
may  be.  The  mandatory  functions  of  Congress  are  unen- 
forceable obligations,  it  is  true,  but  obligations  neverthe- 
less. 

Broadly  speaking,  all  legislative  powers  are  divided  by  The  four 
the  constitution  into  four  groups.     First,  there  are  certain  gUJJJJ^of 
powers  which  are  forbidden  to  be  exercised  either  by  Con-  provided  for 
gress  or  by  the  state  authorities.     Second,  there  are  various  jl 
powers  which  are  vested  in  Congress  alone,  to  the  exclusion  tion. 
of  all  state  authority.     Third,  there  are  certain  concurrent 
powers,  which  Congress  and  the  state  authorities  may  share, 
although  the  latter  in  case  of  conflict  must  give  way  to  the 
former.     And,  finally,  there  are  all  the  remaining  powers 
of  government  forming  the  residuum  which  reverts  to  the 
states. 

The  powers  prohibited  either  to  Congress,  or  to  the  states, 
or  to  both,  are  of  a  considerable  range.  Some  are  powers 
which  no  free  government  ought  ever  to  exercise ;  for  example, 


216      THE  GOVERNMENT  OF  THE  UNITED  STATES 


1.  Powers 
prohibited 
to  both  the" 
nation  and 
the  states. 

2.  Powers 
prohibited 

to  the 
states  only. 


3.    Powers 
expressly 
given  to 
Congress. 


How  these 
powers  may 
be  classified. 


the  power  to  pass  bills  of  attainder,  or  to  enact  ex  post  facto 
laws,  or  to  deprive  any  one  of  his  life,  liberty,  or  property 
without  due  process  of  law.  The  exercise  of  these  powers 
is  forbidden  to  both  the  national  and  the  state  governments. 

But  in  addition  there  are  other  powers,  not  by  their 
nature  despotic  or  arbitrary,  which  had  to  be  vested  in 
some  central  authority  and  hence  were  prohibited  to  the 
states  so  that  they  might  always  be  exercised  by  Congress 
alone.  The  states,  accordingly,  were  forbidden  to  make 
treaties,  or  to  coin  money,  or  to  lay  taxes  on  either  exports 
or  imports. 

The  constitution  contains  eighteen  clauses  expressly 
granting  powers  to  the  national  government,  hence  the 
customary  reference  to  "the  eighteen  powers  of  Congress." 
There  are  really  more  than  eighteen  separate  powers,  how- 
ever, as  some  of  the  clauses,  convey  more  than  one.  The 
section  which  contains  the  enumeration  of  these  powers 
is  the  longest  single  section  in  the  constitution  and  also 
the  most  important.1  It  furnishes  the  national  govern- 
ment with  its  motive  power,  and  indeed  without  this  par- 
ticular section  Congress  would  be  a  wholly  impotent  body. 
The  powers  granted  to  Congress  by  these  eighteen  clauses 
are  those  which  the  makers  of  the  constitution  agreed  upon 
as  either  being  necessary  for  the  maintenance  of  a  vigorous 
central  government  or  of  such  a  general  character  that  they 
could  not  be  left  to  the  precarious  tutelage  of  the  several 
state  legislatures. 

Taken  as  a  whole  they  may  be  grouped  under  eight 
heads :  (l)  Financial,  the  power  to  levy  taxes  and  to  bor- 
row money.  (2)  Commercial,  the  power  to  regulate  foreign 
and  interstate  commerce.  (3)  Military,  the  power  to  declare 
war,  to  raise  and  support  armies,  to  provide  for  the  organiza- 
tion, arming,  and  calling  forth  of  the  militia,  and  the  power  to 
maintain  a  navy.  (4)  Monetary,  the  power  to  coin  money, 
to  regulate  the  value  thereof,  and  to  protect  the  currency 
against  counterfeiting.  (5)  Postal,  the  power  to  establish 
post-offices  and  post-roads.  (6)  Judicial,  the  power  to 
constitute  tribunals  inferior  to  the  Supreme  Court.  (7) 
Miscellaneous,  including  powers  in  relation  to  naturaliza- 
1  Article  1,  Section  8. 


THE  GENERAL  POWERS  OF  CONGRESS     217 

tion,  bankruptcy,  patents,  copyrights,  and  to  the  govern- 
ment of  the  national  capital.  (8)  Supplementary,  the 
power  to  make  all  laws  which  may  be  found  "  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers/7 
Not  all  of  these  powers  are  of  equal  scope  and  importance. 
The  first  three  categories  —  financial,  commercial,  and  mili- 
tary—  are  probably  of  greater  moment  than  all  the  others 
put  together.  They  form  the  mainstay  of  congressional 
powers. 

The  fact  that  a  power  is  given  to  Congress  by  the  constitu-  4.  Con- 
tion  does  not  imply,  however,  that  Congress  alone  may 
exercise  it,  and  that  it  may  not  also  be  shared  by  the  states 
as  well.  Some  congressional  powers  are  by  their  nature 
practically  indivisible,  as  for  example,  the  power  to  declare 
war ;  but  there  are  others  which  can  readily  be  shared,  for 
instance,  the  power  to  punish  counterfeiting.  These  latter 
powers  are  usually  spoken  of  as  concurrent  powers,  or  powers] 
which  the  states  may  use  so  long  as  their  action  does  not 
conflict  with  laws  made  by  Congress.  To  take  an  illustra- 
tion :  Congress  is  given  by  the  constitution  the  power 
to  establish  "uniform  laws  on  the  subject  of  bankruptcies 
throughout  the  United  States."  If,  however,  Congress 
does  not  enact  such  uniform  laws,  any  state  may  make  its 
own  rules  on  the  subject  and  apply  them  within  its  own 
borders.  But  when  Congress  does  provide  uniform  laws, 
all  conflicting  rules  in  any  state  become  unconstitutional. 

Naturally   enough,   no   enumeration  of  powers  retained  5.  Powers 
by  the  states  is  made  in  the  constitution.     The  states  merely  th 
retained  the  whole  residuum.     Subtracting  from  the  totality  or 
of  all  governmental  powers  those  which  are  expressly  for- 
bidden  to  them  and  also  those  which  are  granted  to  Congress 
the  states  have  what  remains.     All  powers  not  mentioned 
or  implied  in  the  constitution  are  state  powers.     If  this  was 
not  sufficiently  clear  at  the  outset,  the  Tenth  Amendment 
soon  made  it  so.1     The  residuum  which  remains  with  the 
states  is  very  large,  including  as  it  does  nearly  the  whole 
field  of  civil  and  criminal  law,  the  chartering  of  corporations, 
the  supervision  of  local  government,  the  maintenance  of 
order,  the  control  of  education,  and  the  general  adminis- 
1  See  above,  p.  45,  footnote. 


218      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Constituent 
powers  and 
lawmaking 
powers. 


Are  the 
powers  of 
Congress 
adequate  ? 


tration  of  nearly  all  the  things  which  touch  the  daily  life  of 
the  people. 

This  distribution  of  powers  and  the  limitations  on  the 
national  government,  as  a  thoughtful  writer  has  pointed 
out,  will  enable  any  one  to  understand  why  the  British 
parliament  is  termed  a  constituent  body  while  Congress 
is  only  a  lawmaking  body.1  Legally  speaking,  parliament 
is  the  British  empire.  Its  powers  embrace  the  sum  total 
of  all  governmental  authority.  There  is  no  political  power 
above  it,  competent  to  restrain  or  overrule  its  acts ;  there 
is  no  sphere  or  field  of  government  in  which  it  may  not 
operate,  no  act  of  government  which  it  may  not  perform. 
Congressmen  represent  the  people ;  but  parliament  is  the 
people.  Congress  is  merely  an  agent,  while  parliament  is 
a  principal.  Whatever  the  nation  can  do  in  its  sovereign 
capacity,  parliament  can  do.  It  is  not  restrained  by  a 
constitution,  because  its  acts  make  up  the  constitution, 
and  hence  nothing  that  it  does  can  be  unconstitutional. 
Congress,  on  the  other  hand,  is  the  American  nation  for 
one  purpose  alone,  namely,  for  exercising  certain  powers 
delegated  to  it  by  the  states. 

Does  the  constitution  give  Congress  powers  enough? 
Construed  strictly,  it  does  not.  But  the  literal  powers 
conveyed  by  the  constitution,  as  has  been  already  shown, 
have  been  greatly  broadened  by  the  process  of  judicial 
interpretation  so  that  they  are  now  reasonably  adequate 
for  all  that  a  central  government  needs  to  do.  The  con- 
vention of  1787  was  undertaking  a  great  experiment  in  the 
division  of  governmental  powers.  It  is  small  wonder  that 
its  members  should  have  gone  cautiously.  Since  their 
day  a  dozen  other  nations  have  established  federal  constitu- 
tions, including  Australia,  Canada,  Switzerland,  and  South 
Africa.  In  every  case  these  constitutions  give  more  powers 
to  the  federal  government  than  does  the  supreme  law  of  the 
United  States.  The  old  fear  of  federal  despotism  has 
passed  away. 

1  J.  A.  Woodburn,  The  American  Republic  (2d  ed.,  N.  Y.,  1916),  p.  89. 


CHAPTER  XV 

THE   TAXING   POWER 

OF  all  the  prerogatives  that  can  be  lodged  in  any  govern-  importance 
ment,  the  taxing  power  is  the  most  important.  When  ^^® 
Chief  Justice  Marshall  spoke  of  the  power  to  tax  as  the  to  tax. 
"  power  to  destroy,"  he  meant  that  this  great  economic 
weapon,  if  unrestrained,  might  be  used  by  a  government  to 
destroy  any  form  of  business  or  to  wipe  out  any  form  of 
property.1  It  is  a  power,  nevertheless,  which  in  some  form 
or  other  every  government  must  possess.  No  government 
can  exist  without  income,  and  taxation  is  the  natural  source 
of  governmental  income.  The  Articles  of  Confederation 
gave  no  power  to  tax,  and  that  is  the  chief  reason  why  the 
Confederation  tottered.  It  was  chiefly  to  create  a  taxing 
power  that  the  framers  of  the  new  constitution  were  brought 
together.  The  Union  was  born  of  the  desire  for  a  central 
authority  with  an  assured  income.  •  It  is  appropriate, 
therefore,  that  the  authority  "to  lay  and  collect  taxes,  duties, 
imports  and  excises"  should  stand  first  among  the  eighteen 
enumerated  powers  of  Congress. 

A  tax  may  be  defined   as  a  burden  or  charge  imposed  Definition 
by  a  legislative  authority  upon  persons  or  property  to  raise  of  a  tax> 
money  for  public  purposes.     Taxation,  accordingly,  is  sim- 
ply the    confiscation   of   private   property  for   public    use 
under  conditions  determined  by  law.     The  only  difference 
between  modern  taxes  and  the  predatory  exactions  of  tyran- 

1  "That  the  power  to  tax  involves  the  power  to  destroy ;  that  the  power 
to  destroy  may  defeat  and  render  useless  the  power  to  create ;  that  there 
is  a  plain  repugnance  in  conferring  on  one  government  a  power  to  control 
the  constitutional  measures  of  another,  which  other,  with  respect  to  those 
very  measures,  is  declared  to  be  supreme  over  that  which  exerts  the  control, 
are  propositions  not  to  be  denied."  —  McCulloch  vs.  Maryland  (1819), 
4  Wheaton,  316. 

219 


220      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Essentials 
of  a  good 
tax. 


Classifi- 
cation of 
taxes : 
1.  Accord- 
ing to 
purpose : 
fiscal 
and 
regulative. 


2.  Accord- 
ing to 
incidence : 
direct  and 
indirect. 


nical  times  is  that  the  former  are  levied  upon  the  people  by 
action  of  their  own  representatives  and  in  accordance  with 
certain  principles  which  aim  to  insure  a  fair  adjustment  of 
the  burden. 

Nearly  one  hundred  and  fifty  years  ago  the  greatest 
of  political  economists,  Adam  Smith,  laid  down  four  rules  or 
canons  which  ought  to  be  observed  in  the  levying  of  taxes, 
and  these  rules,  despite  great  changes  in  both  economic 
and  political  conditions,  are  recognized  as  sound  at  the 
present  day.  Adam  Smith's  canons  of  taxation  may  be 
briefly  summarized  as  follows :  that  the  citizens  of  a  state 
should  be  taxed  according  to  their  ability  to  pay ;  that 
taxes  should  be  certain,  not  arbitrary;  that  they  ought  to 
be  "levied  at  the  time  and  in  the  manner  which  is  most 
likely  to  be  most  convenient  for  the  contributor  to  pay  "  ; 
and,  finally,  that  taxes  should  be  so  contrived  as  to  taki; 
out  of  the  pockets  of  the  people  as  little  as  is  possible  above 
what  is  actually  needed  by  the  public  treasury.1 

Taxes  are  of  various  sorts  and  may  be  classified  in  several 
ways.  According  to  their  purpose,  taxes  may  be  divided 
into  two  kinds,  figcal  and  regulative.  The  former  are 
levied  with  the  sole  purpose  of  securing  revenue;-  the 
latter  are  imposed,  either  in  whole  or  in  part,  from  motives 
of  social  or  economic  improvement  and  without  prime  regard 
for  their  value  as  revenue  producers.  The  general  property 
tax  is  the  best  example  of  taxation  for  purely  fiscal  purposes, 
while  taxes  levied  upon  alcoholic  liquors  may  be  looked 
upon  as  being  to  a  large  extent  regulative  in  character,  de- 
signed to  discourage  consumption.  Taxation  may,  of 
course,  be  both  fiscal  and  regulative.  A  protective  tariff 
on  imports  is  a  good  illustration.  High  duties  yield  a 
large  annual  revenue  and  in  addition  afford  a  measure  of 
protection  to  home  industries  against  foreign  competition. 

Another  classification  of  taxes  is  based  upon  their  assumed 
incidence  or  final  resting  place.2  .<  Direct  taxes,  such  as 
taxes  on  land  and  poll  taxes,  are  supposed  to  rest  finally 
upon  those  who  pay  them  in  the  first  instance  ;•;,  while  indirect 

1  The  Wealth  of  Nations,  Book  v,  ch.  ii,  pt.  ii. 

2  For  a  discussion  of  this  subject  see  E.  R.  A.  Seligman,  The  Shifting 
and  Incidence  of  Taxation  (3d  ed.,  N.  Y.,  1910). 


THE  TAXING  POWER  221 

taxes,  such  as  customs  duties  and  excises  upon  spirituous 
liquors,  are  laid  with  the  expectation  that  they  will  be 
shifted  to  the  shoulders  of  the  ultimate  consumer.  These 
suppositions,  however,  are  not  always  in  accordance  with 
the  facts.  Even  direct  taxes  are  occasionally  shifted,  while 
indirect  taxes  under  some  circumstances  remain  where  they 
are  placed.  For  this  reason  the  classification  of  all  taxes  into 
two  categories,  direct  and  indirect,  according  to  incidence,  is 
not  a  satisfactory  one  from  the  standpoint  of  the  economist. 
In  political  science  and  in  actual  legislation,  nevertheless, 
this  distinction  between  direct  and  indirect  taxes  has  been 
of  great  importance,  particularly  in  the  United  States. 

The  chief  taxes  levied  in  the  United  States  today,  whether  3.  Accord- 
fiscal  or  regulative,  direct  or  indirect,  are  taxes  on  property, 
real  and  personal,  taxes  on  incomes,  duties  on  imports, 
excises  on  liquors,  tobacco,  railroad  and  theatre  tickets, 
telegrams,  and  so  forth,  taxes  on  the  excess  profits  of  indus- 
try and  commerce,  inheritance  taxes,  and  poll  taxes  on  per- 
sons. The  national  government  is  permitted  by  the  con- 
stitution to  levy  taxes  in  all  these  seven  forms,  but  it  has 
not  for  more  than  fifty  years  made  use  of  the  first  or  the 
last,  both  of  which,  if  imposed,  must  be  apportioned  among 
the  states  according  to  their  respective  populations. 

But  although  the  taxing  power  of  Congress  is  extensive ;  Limita- 
in  scope,  it  is  by  no  means  unlimited.     Restrictions  of  vari-  *i°nf OI? 

J  — .„— the  taxing 

ous  sorts  are  provided  in  the  constitution.     Ihe  first  of  power  of 
these  limitations  relates  to  the  purposes  for  which  taxes  Congress: 
may  be  imposed.     Congress  may  only  levy  taxes  in  order  ,1.  Taxes 
"to  pay  the  debts  and  provide  for  the  common  defense  and*  ^ebe 
general  welfare  of  the  United  States."     That,  to  be  sure  j  for  a 
is  not  a  stringent  limitation,   for  nearly    every    tax  that! 
Congress  desires  to  levy  may  be  brought  within  the  broad! 
confines  of  "general  welfare."     This  general  welfare  clause, 
it  should  be  mentioned,  is  not  a  grant  of   legislative  au- 
thority to  Congress,  as  might  appear  from  a  rapid  reading  of 
its  context,  but  a  limitation  upon  the  taxing  power.1 

1  "Some,  who  have  not  denied  the  necessity  of  the  power  of  taxation, 
have  grounded  a  very  fierce  attack  against  the  constitution,  on  the  lan- 
guage in  which  it  is  defined.  It  has  been  urged  and  echoed,  that  power 
'to  lay  and  collect  taxes,  duties,  imposts  and  excises,  to  pay  the  debts, 
and  provide  for  the  common  defense  and  general  welfare  of  the  United 


222      THE  GOVERNMENT  OF  THE  UNITED  STATES 

In  various  forms  the  question  as  to  what  is  a  "  general 
welfare"  purpose  has  been  presented  to  the  courts  for  inter- 
pretation. May  taxes  be  imposed  in  order  to  pay  bounties  to 
growers  of  sugar  beets  or  some  other  commodity  which  Con- 
gress desires  to  encourage  ?  In  such  matters  the  courts  have 
held  that  incidental  private  benefits  do  not  preclude  the 
main  purpose  from  being  a  public  one.  Rarely,  therefore, 
have  tax  laws  been  declared  invalid  on  this  account. 

2.  Taxes  In  the  second  place,  the  constitution  requires  that  all 
uniform        duties,  imposts,  and  excises  imposed  by  the  authority  of 

Congress  shall  be  uniform  throughout  the  United  States. 
This  does  not  mean,  however,  that  all  the  states  must  con- 
tribute equally  or  in  proportion  to  their  population.  Con- 
gress, in  the  exercise  of  its  discretion,  may  adjust  the  bur- 
den of  national  taxation  so  that  more  will  fall  upon  one 
area  or  section  of  the  population  than  upon  another.  A 
tax  on  tobacco  is  not  void  for  want  of  uniformity  because 
tobacco  happens  to  be  grown  in  some  states  of  the  Union 
and  not  in  others.  Uniformity,  within  the  meaning  of 
the  constitution,  is  secured  if  the  levy  bears  with  equal 
burden  wherever  the  subject  of  the  impost  is  found.  For 
example,  a  tax  upon  alien  immigrants  has  been  held  to  be 
uniform  even  though  nine-tenths  of  it  was  shown  to  fall 
upon  the  port  of  New  York.  On  the  other  hand,  a  tax 
would  not  be  uniform  if  it  should  make  discriminations 
between  the  same  things  in  different  parts  of  the  country ; 
for  example,  if  it  should  be  levied  upon  inheritances  at 
one  rate  in  some  states  and  at  a  different  rate  in  others. 
When  customs  duties  are  collected,  to  give  another  illus- 
tration, the  rates  upon  any  class  of  commodities  must  be 
the  same  at  all  ports  of  entry.  No  preference  may  be  given 
by  any  regulation  of  commerce  or  revenue  to  the  ports 
of  one  state  over  those  of  another. 

3.  No  tax         A  third  limitation  upon  the  taxing  powers  of  Congress 

relates  to  exports  and  to  internal  tariffs.  "  No  tax  or  duty/' 
declares  the  constitution,  "shall  be  laid  upon  articles  ex- 
States/  amounts  to  an  unlimited  commission  to  exercise  every  power 
which  may  be  alleged  to  be  necessary  for  the  common  defense  or  general 
welfare.  No  stronger  proof  could  be  given  of  the  distress  under  which 
these  writers  labor  for  objections,  than  their  stooping  to  such  a  miscon- 
struction." —  The  Federalist,  No.  41. 


THE  TAXING  POWER  223 

ported  from  any  state."  Congress  may  not,  therefore,  tax 
the  exports  which  go  from  the  United  States  to  foreign  terri- 
tories. It  may  tax  imports  only.  The  restriction  upon 
the  states  is  even  more  rigid,  since  a  state  cannot,  without 
the  consent  of  Congress,  impose  taxes  upon  either  imports 
or  exports  under  any  circumstances  whatever.  In  this 
connection  the  insular  possessions,  such  as  Porto  Rico  and 
the  Philippines,  have  been  held  to  be  neither  states  nor 
foreign  territory,  hence  trade  between  the  United  States 
and  these  areas  may  be  made  subject  to  taxation.  In  one 
of  the  famous  Insular  Cases  the  Supreme  Court  held  that 
Porto  Rico,  upon  its  cession  to  the  United  States,  ceased 
to  be  foreign  territory,  but  did  not  thereby  become  incor- 
porated into  the  Union.1 

The  prohibition  of  any  tax  upon  exports  was  one  of  the  Reason  for 
compromises  of  the  constitution.  It  was  a  concession  to  thlsrule- 
the  southern  states,  which  were  at  that  time  large  exporters 
of  rice,  tobacco,  and  similar  staples.  The  current  economic 
notion  of  the  day  was  that  export  duties  always  fell  upon 
the  exporter,  while  duties  on  imports  fell  upon  the  consumer. 
Hence  the  southern  delegates  were  firmly  opposed  to  giving 
Congress  any  right  to  impose  export  duties  which  would 
fall  wholly  upon  the  planters,  and  in  the  end  they  had  their 
way.  In  some  respects,  however,  the  restriction  has  proved  its  unfor- 
unfortunate.  It  has  at  times  deprived  Congress  of  a  means  influence, 
whereby  the  depletion  of  natural  resources  might  have  been 
prevented.  Exports  of  timber  amounting  to  many  millions 
per  year  have  gone  forth  untaxed.  It  should  be  noted,  how- 
ever, that  the  prohibition  of  taxes  on  exports  does  not  re- 
strain Congress  from  regulating  export  trade  in  any  reason- 
able way  otherwise  than  by  taxing  it.  Nor  does  it  exempt 
goods  from  the  payment  of  ordinary  internal  taxes  merely 
because  they  are  being  manufactured  for  export.  As 
regards  duties  on  imports,  Congress  has  full  power.  It 
may  levy  import  duties  of  any  sort  and  at  such  rates  as  it 
may  determine,  provided  of  course  that  the  rates  are  uniform 
at  all  ports  where  the  goods  come  in. 

A  fourth  constitutional  limitation  on  the  taxing  power 
of  Congress  relates  to  the  imposition  of  capitation  and  other 

1  183  U.  S.  151. 


224      THE  GOVERNMENT  OF  THE  UNITED  STATES 


4.    Direct 
taxes  must 
be  appor- 
tioned. 


What  are 
"direct 
taxes"  in 
this  sense? 


Some  exam- 
ples of 
early  taxes 
not  held 
to  be 
"direct" 
taxes. 


direct  taxes.  Congress  has  power  to  lay  and  collect  direct 
taxes,  as  often  and  in  such  amounts  as  it  may  see  fit.  But 
the  amount  which  it  requires  to  be  raised  by  direct  taxation 
must  be  "  apportioned  among  the  several  states  according 
to  their  respective  numbers,  counting  the  whole  number  of 
persons  in  each  state,  excluding  Indians  not  taxed."  *  In 

:•  other  words,  direct  taxes  must  be  distributed  throughout 
the  Union  according  to  population,  not  according  to  wealth, 

;  income,  or  any  other  common  denominator.     This  provision 
of  the   original   constitution,    somewhat   modified   by   the 

<  Fourteenth  Amendment,  was  part  of  the  Great  Compromise. 
But  what  are  direct  taxes  within  the  scope  of  this  restric- 
tion? At  the  time  the  constitution  was  adopted  it  seems 
to  have  been  taken  for  granted  that  the  only  direct  taxes 
were  poll  taxes  and  taxes  on  land.  Taxes  of  every  other 
sort  were  regarded  as  indirect  taxes.  Ten  years  later  the 
Supreme  Court  affirmed  this  assumption  in  an  opinion 
which  declared  that  a  tax  on  carriages  was  not  a  direct  tax ; 
that  capitation  taxes  and  taxes  on  land  were  the  only  forms 
of  direct  taxation;  and  that  all  other  taxes  were  included 
within  the  comprehensive  phrase  "  imposts,  duties  and 
excises,"  or  indirect  taxes.2  Three  of  the  four  justices 
who  heard  the  arguments  in  the  controversy  had  been  mem- 
bers of  the  constitutional  convention.  "As  all  direct  taxes 
must  be  apportioned,"  said  one  of  the  justices  in  this  case, 
"it  is  evident  that  the  constitution  contemplated  none  as 
direct  but  such  as  could  be  apportioned."  Congress  also 
levied  at  various  times  a  tax  upon  bank  circulation,  a  tax 
upon  the  receipts  of  insurance  companies,  and  a  tax  upon 
the  inheritance  of  real-  estate ;  but  it  did  not  regard  these 
as  direct  taxes  and  hence  made  no  provision  for  apportioning 
them.  All  these  taxes  were  contested  as  unconstitutional, 
but  the  Supreme  Court  held  that  none  was  a  direct  tax 
and  hence  that  none  needed  to  be  apportioned.3 

Finally,  in   1862   and   1864,   under  the  stress  of  heavy 
demands  for  war  revenue,  Congress  proceeded  to  lay  taxes 

1  Amendment  XIV,  Section  2. 

2  Hylton  vs.  United  States,  3  Dallas,  171. 

3  Veazie  Bank  vs.  Fenno,  8  Wallace,  533 ;    Pacific  R.  R.  Co.  vs.  Soule, 
7  Wallace,  433 ;  and  Scholey  vs.  Rew,  23  Wallace,  331. 


THE  TAXING  POWER  225 

on  incomes,  without  provision  for  apportionment.     Then,  The  income 
for  the  first  time,  arose  the  question  whether  an  income  tax  ^g00.11*^" 
was  a  direct  tax.     After  reviewing  its  attitude  in  previous  various 
cases  relating  to  the  taxing  power  of  Congress,  the  Supreme  stages- 
Court  unanimously  decided  that  an  income  tax  was  not  a  come  tax 
direct  tax,  declaring  categorically  that  the  only  direct  taxes^  law  of  the 
within  the  meaning  of  the  constitution,  are  poll  taxes  andj  period.  " 
taxes  on  real  estate.1     This  decision  was  not  given  for  many 
years  after  the  passage  of  these  income  tax  laws.     Mean- 
while, the  need  for  great  increases  in  the  federal  revenue  had  . 
passed  and  the  laws  were  repealed. 

This  long  line  of  decisions  might  well  have  been  thought 
to  settle  the  matter  forever,  but  in  the  next  generation  the 
question  as  to  the  status  of  income  taxes  was  once  more 
revived,  and  this  time  it  was  answered  in  a  different  way. 
Congress  in  1894  passed  a  new  income  tax  law  imposing.;  2.  Thein- 
a  levy  of  two  per  cent  on  all  incomes  above  four  thousand  \  iC°™0ftax 
dollars  from  whatever  source  derived.  This  law  was' 1894. 
promptly  attacked  as  unconstitutional,  and  the  Supreme 
Court,  after  prolonged  delays  and  two  hearings,  finally 
decided  in  1895  that  a  tax  on  the  income  from  property 
is  virtually  a  tax  on  the  property  itself,  and  accordingly  that 
a  tax  on  such  income  must  be  held  to  be  a  direct  tax.2  A 
tax  on  land,  the  court  pointed  out,  was  admittedly  a  direct 
tax,  and  a  tax  upon  the  income  of  land  is  not  distinguishable 
on  any  broad  principle  from  a  tax  on  the  land  itself.  The 
law  of  1894,  having  levied  a  direct  tax  without  provi- 
sion for  apportioning  it  among  the  states  according  to 
population  as  the  constitution  requires,  was  therefore 
declared  to  be  unconstitutional.  Thus,  by  a  close  decision, 
in  which  four  out  of  the  nine  justices  dissented,  the  court 
reversed  the  ruling  which  it  had  made  on  the  nature  of 
income  taxes  fourteen  years  before.  From  1895  to  1911, 
accordingly,  Congress  was  not  able  to  enact  a  valid  income 
tax  law  without  providing  for  an  apportionment  among  the 
states.  To  have  apportioned  an  income  tax  according  to 
population  would  have  been  highly  inequitable,  since  popu- 
lation and  total  income  do  not  bear  any  fixed  ratio  to  one 

1  Springer  vs.  United  States,  102  U.  S.  586. 

2  Pollock  vs.  Farmers'  Loan  and  Trust  Co.,  157  U.  S.  429 ;  158  U.  S.  601. 

Q 


l/(AVU' 


226      THE  GOVERNMENT  OF  THE  UNITED  STATES 

another.  Massachusetts,  for  example,  has  a  smaller  popu- 
lation than  Texas,  but  a  far  larger  number  of  taxable  incomes. 

3.  The  Six-       This   legal   obstacle   was   finally   removed,   however,   in 
Amend         1913,  when  a  sufficient  number  of  the  states  gave  their  assent 
ment,  1913.    to  the  Sixteenth  Amendment,  the  adoption  of  which  was 

in  effect  a  reversal  of  the  Supreme  Court's  decision  on  the 
law  of  1894.  This  amendment  provides  that  "Congress 

j  shall  have  power  to  lay  and  collect  taxes  on  incomes,  from 
whatever  source  derived,  without  apportionment  among 

j  the  states  and  without  regard  to  any  census  or  enumera- 

4.  The       I  tion."     Shortly  after  the  adoption  of  the  Sixteenth  Amend- 
tax°iaw  of     meirk  a  new  federal  tax  upon  incomes  was  imposed,  and  this 
1913.  tax,  which  is  now  collected  directly  by  the  federal  authori- 
ties, brings  in  a  considerable  share  of  the  nation's  income.1 
The   power   of    Congress  to  levy  upon  incomes,   without 
apportionment,  is  now  beyond  question ;   but  this  does  not 
mean  that  no  income  tax  law  can  henceforth  be  held  to 
be   unconstitutional.     The   constitution   provides,   for   ex- 
ample, that  the  salaries  of  judges  "shall  not  be  diminished 
during  their  continuance  in  office."     Notwithstanding  the 
provision  that   Congress   may  tax  incomes    "from  what- 
ever source  derived,"  it  is  highly  probable  that  a  tax  upon 
the  salaries  of  judges  would  be  held  to  be  an  impairment 
of  their  protection  against  any  diminution  of  remuneration, 
and  hence  to  be  unconstitutional. 

Constitu-     ]    In  1909,  before  the  adoption  of  the  Sixteenth  Amend- 

of°thelty       ment,  a  tax  was  imposed  by  Congress  upon  the  net  income 

tax  on  cor-    of  corporations.     This  levy  was  upheld  as  being  an  excise, 

porations.      no^.  an  mcome  tax ;  in  other  words  as  a  tax  upon  the  privilege 

of  doing  business   under  the   corporate,   as   distinguished 

»  from  the  individual,  form  of  organization.     Being  an  excise, 

1  it  could  be  levied  without  apportionment. 

All  of  the  foregoing  limitations  are  expressly  laid  down 
in  the  constitution.  In  addition,  there  is  an  implied  limita- 
tion arising  out  of  the  very  nature  of  the  federal  union,  and 
one  that  is  necessary  to  the  continued  free  working  of  the 
state  governments.  If  the  states  are  to  be  secured  in 
the  full  enjoyment  of  their  reserved  powers,  Congress  must 
not  be  permitted  to  hamper  their  agencies  of  administra- 
1  E.  R.  A.  Seligman,  The  Income  Tax  (2d  ed.,  N.  Y.,-1914). 


THE  TAXING  POWER  227 


tion  by  imposing  taxes  upon  them.     For  let  it  once  be  May 

admitted  that  Congress  may  tax  the  mechanism  through 

which  the  state  performs  its  functions  and  the  supremacy  strumentaii- 

of  Congress  over  the  states  would  soon  become  established.  *51te?  a 

One  hundred  years  ago  it  was  decided  by  the  Supreme  Court 

that  no  state  could  tax  the  instrumentalities  of  the  federal 

government,    such    as   post-offices,    customhouses,    or   the 

notes  of  national  banks.     This  decision  was  based  upon 

the  argument  that  the  various  states,  if  given  authority 

to   tax  the   mechanism   of  federal   administration,   would 

possess  the  power  to  stop  its  wheels  entirely.     This  argu- 

ment, however,  if  valid  in  one  direction  is  equally  valid  in 

the  other,  as  is  now  well  recognized.     Congress  may  not 

tax  the  property  of  a  state  or  the  salaries  of  its  officers.1 

It  may  be  that  the  Sixteenth  Amendment  has  now  altered 

this  situation  as  respects  incomes  derived  from  state  em- 

ployment. 

These,  then,  are  the  limitations  imposed  by  the  constitu-  HowCon- 
tion  upon  the  taxing  power  of  Congress.     Now  as  to  the  exercised 
way  in  which  the  taxing  power  is  actually  exercised.     It  was  its  tax- 
assumed  by  the  framers  of  the  constitution  that  Congress  msp°wers- 
would   frequently  levy   direct   taxes   and   apportion  them 
among  the  states,  but  direct  taxes  have  proved  far  less 
important  sources  of  federal  revenue  than  was  anticipated 
in  1787.     On  five  occasions  only  has  Congress  levied  direct  1  1.  Direct 
taxes:  once  in  1798,  three  times  during  the  War  of  1812,  taxes> 
and  once  during  the  Civil  War.     In  each  case  Congress 
set  the  total  amount  to  be  raised  and  then  allotted  to  each 
state  its  due  proportion  according  to  its  population.     In 
each  case  also,  Congress  specified  the  subjects  upon  which 
the  tax  was  to  be  levied  and  indicated  the  machinery  for 
collecting  it.     Lands  and  slaves  were  the  subjects  taxed 
by  the  earlier  laws,  while  the  act  of  1861  laid  a  direct  tax 
upon  land  alone.     The  seceding  states  refused  to  pay  this 
levy.     No   direct   tax   has   been   apportioned    among   the 
states  since  that  date.2 

1  Tax  Collector  vs.  Day,  11  Wallace,  113. 

2  Data  concerning  the  taxing  policy  of  the  federal  government  during 
various  periods  may  be  conveniently  found  in  D.  R.  Dewey's  Financial 
History  of  the  United  States  (5th  ed.,  N.  Y.,  1915). 


228      THE  GOVERNMENT  OF  THE  UNITED  STATES 

2.  indirect  At  all  times  since  its  establishment  the  national  govern- 
ment has  depended  for  the  bulk  of  its  revenue  upon  indirect 
taxes,  and  particularly  upon  three  forms  of  indirect  taxation, 
namely,  customs  duties,-  excises  upon  liquors  and  tobacco, 
and,  more  recently^  taxes  levied  upon  the  net  earnings  of 
individuals  and  corporations.  Until  the  time  of  the  Civil 
War  the  proceeds  from  import  duties  upon  merchandise 
formed  the  most  important  source  of  national  income. 
The  entire  national  revenue  in  1860  was  about  sixty  millions, 
of  which  nearly  ninety  per  cent  came  from  duties  upon 
imports.  In  1916,  the  year  before  the  United  States  entered 
the  war,  the  national  revenue  from  taxation  had  increased 
to  more  than  seven  hundred  millions,  of  which  the  import 
duties  contributed  considerably  less  than  one-half.  Excises, 
or  internal  revenue  taxes  upon  spirituous  liquors,  tobacco, 
and  a  few  other  articles  had  grown  to  be  the  most  lucrative 
source  of  national  income  and  yielded  in  1916  much  more 
than  duties  on  imports.  Some  years  previously  Congress 
imposed  a  tax  upon  the  net  income  of  corporations,  and  in 
1913,  after  the  adoption  of  the  Sixteenth  Amendment,  the 
policy  of  taxing  the  net  incomes  of  individuals  and  partner- 
ships was  revived.  These  four  forms  of  taxation,  customs 
duties,  excises,  taxes  on  corporations,  and  taxes  on  individ- 
ual incomes  formed  the  mainstay  of  federal  revenues  in 
the  years  just  prior  to  1917. 

The  war  In  April,    1917,   when  the  United  States  declared  war 

taxes.  upon  the  German  government,  the  certainty  of  huge  mili- 

tary expenditures  necessitated  an  increased  revenue.  It 
was  not  deemed  to  be  just  or  expedient  that  all  the  funds 
needed  for  carrying  on  the  war  should  be  raised  by  borrow- 
ing, but  rather  that  the  present  generation  of  taxpayers 
should  be  made  to  bear  its  proper  share  of  the  burden. 
Hence  Congress,  by  a  series  of  war  revenue  measures,  not 
only  extended  and  increased  some  of  the  existing  taxes 
but  resorted  to  new  forms  of  federal  taxation  as  well.  The 
'  excises  on  liquors  and  tobacco  were  made  higher,  while 
many  new  excises  were  imposed,  for  example,  upon  tele- 
grams, railroad  tickets,  automobile  sales,  certain  legal 
papers,  and  so  forth.  The  rates  of  taxation,  both  upon  the 
net  income  of  corporations  and  the  net  income  of  individuals, 


THE  TAXING  POWER  229 

/were  much  increased.  A  tax  upon  excess  profits,  that  is,  upon 
all  business  profits  above  a  certain  point,  was  levied  for  the 
first  time  in  American  history.  By  these  various  tax  meas- 
ures the  nation's  normal  income  was  many  times  multiplied. 

This  great  widening  in  the  area  of  federal  taxation  means  The  widen- 
that  both  the  nation  and  the  states  are  now  to  some  extent  "Jg,  fi,eld . 

-n  •    •          i  -  federal 

taxing  the  same  things,  r  rom  the  citizen  s  point  of  view  taxation, 
this  is  double  taxation.  Contrary  to  the  popular  impres- 
\  sion,  however,  there  is  nothing  in  the  constitution  of  the 
United  States  which  forbids  double  taxation.  The  taxing 
powers  of  the  states  clearly  overlap  those  of  Congress,  for 
the  states  are  at  liberty  to  tax  practically  anything  except 
imports,  exports,  the  instrumentalities  of  interstate  com- 
merce, and  the  agencies  of  the  federal  government.  Many 
states  now  have  inheritance  taxes  and  taxes  upon  corpora- 
tions, while  some  have  income  taxes.  In  all  such  cases 
the  inheritance  or  .corporation  or  income  is  subjected  to 
two  different  levies,  one  by  the  nation  and  the  other  by 
the  state.  Such  double  taxation,  while  not  constitutionally 
forbidden,  is  unsound  policy.  It  means  that  revenues 
are  being  drawn  from  the  same  source  by  two  different 
authorities,  neither  of  which  pays  much  attention  to 
what  the  other  is  taking.  Each  imposes  what  it  regards 
as  a  necessary  and  reasonable  burden,  yet  the  two  levies 
put  together  may  prove  to  be  more  than  can  be  borne 
without  forcing  great  economic  readjustments.  A  sys- 
tem of  taxation,  to  be  highly  efficient  and  at  the  same 
time  equitable,  should  be  coordinated  in  all  its  bearings. 
In  each  designated  field  either  the  nation  or  the  states, 
wherever  practicable,  should  be  given  the  right  of  way. 
Competition  for  revenues  between  two  different  authorities, 
each  of  which  has  the  right  to  gather  all  it  can  from  the 
same  sources,  can  hardly  ever  be  made  the  basis  of  sound 
public  financing. 

Not  all  this  extension  of  federal  taxation  has  been  due  to  Federal 
the  need  for  more  revenue.     The  corporation  and  income  J^*!^  on, 
taxes  were  levied  before  the  huge  expenditures  on  military  to  compel 
account  began.     These   taxes,  along  with   the  inheritance  ^djust^ 
tax,  have  had  in  view,  to  some  extent  at  least,  the  readjust-  ments. 
ment  of  the  entire  national  tax-burden,  so  that  a  larger  por- 


230      THE  GOVERNMENT  OF  THE  UNITED  STATES 

tion  of  it  may  be  borne  by  the  well-to-do  than  was  the  case 
in  the  earlier  days  when  customs  duties  furnished  the  bulk 
of  the  revenue.  During  the  whole  of  the  nineteenth  cen- 
tury the  larger  part  of  the  national  revenue  was  not  raised 
in  conformity  with  the  principle  that  those  who  are  best 
able  to  pay  should  contribute  accordingly.  The  high  cus- 
toms duties  were  spread  upon  the  whole  population  in  the 
form  of  higher  prices.  The  rich,  being  larger  purchasers, 
doubtless  assumed  some  share ;  but  relatively  the  load  was 
much  lighter  upon  them  than  on  the  poor.  The  excises  on 
liquors  and  tobacco,  moreover,  fell  chiefly  upon  the  masses 
of  the  people  and  not  upon  the  well-to-do.  The  income 
/tax,  on  the  other  hand,  with  a  rate  which  becomes  higher 
as  the  size  of  the  income  increases,  is  a  charge  which  ad- 
justs itself  to  the  financial  resources  of  each  individual 
citizen.  The  inheritance  tax  also  represents  an  endeavor 
to  make  wealth  rather  than  population  the  measure  of  the 
public  demand  from  different  sections  of  the  country.  Tax- 
ation, in  a  word,  is  becoming  in  the  twentieth  century  not 
only  a  means  of  raising  money  for  public  use,  but  of  com- 
pelling such  economic  reconstruction  as  Congress  thinks 
desirable  for  American  society  as  a  whole.  Many  people 
believe  that  "swollen  fortunes"  are  an  evil  in  a  democracy. 
The  inheritance  tax  is  one  agency  for  reducing  them ;  the 
income  tax  with  a  progressive  surtax  affixed  is  another. 
Incidentally  these  taxes  bring  in  a  large  revenue,  and  thus 
relieve  the  national  government  from  depending  so  heavily 
upon  duties  and  excises. 
The  future  The  future  of  national  taxation  ought  to  have  a  word 
because  certain  features  of  congressional  policy  in  the 
domain  of  public  finance  are  now  becoming  clear.  It  is 
unlikely  that  tariff  duties  will  for  some  years  after  the  war 
contribute  as  large  a  proportion  of  the  total  revenue  as  in 
the  years  preceding  it.  The  prohibition  movement,  if  it 
continues  its  progress,  will  inevitably  diminish  and  perhaps 
eventually  take  away  altogether  the  large  income  which 
has  been  derived  from  the  excises  upon  intoxicating  liquors. 
On1  the  other  hand,  there  will  be  a  continuing  need  for 
a  far  greater  revenue  than  in  pre-war  days,  to  pay  interest 
upon  the  billions  of  war  bonds,  to  provide  pensions,  to  carry 


THE  TAXING  POWER  231 

through  domestic  enterprises  which  have  been  suspended 
during  the  war  years,  and  to  take  care  of  many  things  which 
the  nation's  participation  in  the  great  conflict  will  inevitably 
throw  upon  the  public  treasury.  Where  is  all  this  revenue 
to  be  had?  If  the  signs  of  the  present  day  are  not  mis- 
leading, we  may  reasonably  look  for  the  continuance  of 
taxes  on  incomes,  inheritances,  and  excess  profits.  Possibly 
there  may  be  a  resort  to  direct  taxes  on  property,  appor- 
tioned among  the  states,  although  this  will  never  be  the 
case  until  the  other  producers  of  national  revenue  have  been 
used  to  their  full  carrying  capacity.  In  any  case  the  history 
of  American  federal  taxation  during  the  first  quarter  of  the 
twentieth  century  is  certain  to  be  altogether  unlike  that 
which  marked  the  closing  quarter  of  the  nineteenth. 

The  work  of  collecting  the  national  revenue  is  in  the  How  the 
hands  of  the  Secretary  of  the  Treasury,  but  is  performed  by  [^e^lre 
two  agencies  in  that  department,  namely,  by  the  customs  collected, 
and  the  internal  revenue  services.  For  the  collection 
of  duties  upon  imports  the  country  is  divided  into  about 
fifty  customs  districts,  each  with  a  main  port  of  entry  in 
charge  of  a  collector  or  deputy  collector  of  customs.  For 
the  collection  of  internal  revenue  taxes  the  country  is 
divided  into  a  larger  number  of  similar  areas,  about  sixty- 
five  in  all,  each  also  in  charge  of  a  collector.  The  work  of 
these  collectors  of  internal  revenue  includes  not  only  the 
levy  of  the  regular  excises  on  liquors,  tobacco,  and  so  forth, 
but  the  collection  of  the  corporation  and  income  taxes  as 
well.  The  assessments  upon  which  corporation  and  indi- 
vidual income  taxes  are  levied  depend,  in  the  first  instance, 
upon  sworn  declarations  which  must  be  filed  by  every  cor- 
poration, partnership,  or  individual  liable  to  taxation. 
Incomes  of  business  corporations  and  of  individuals  below 
a  designated  sum  are  exempt.  All  collections  are  turned 
into  the  general  treasury  of  the  United  States. 

This  general  treasury  consists  of  the  main  vaults  at  Wash-  The  general 
ington  and  nine  sub-treasuries  located  in  as  many  large  ^thef 
cities  throughout  the  country.1     These  sub-treasuries  are  sub-treas- 
the  government's  chief  agencies,  not  only  for  receiving  the  u 

1  At  present  these  are :   Baltimore,  Boston,  Chicago,  Cincinnati,  New 
Orleans,  New  York,  Philadelphia,  St.  Louis,  and  San  Francisco, 


232      THE  GOVERNMENT  OF  THE  UNITED  STATES 

revenue  but  for  paying  it  out  on  warrants.     The  law  also 

permits  the  Secretary  of  the  Treasury  to  designate  various 

United     '    national  banks  as  depositaries  and  to  keep  funds  in  these 

depoS-         institutions.     In  such  cases,  however,  approved  securities 

taries.  must  be  placed  with  the  Secretary,  to  be  held  by  him  as  a 

guarantee  for  the  safety  of  the  government  deposits.     The 

accounts  of  every  officer  who  has  to  do  with  the  collection 

of  the  revenue  are  regularly  audited  by  officials  of  the 

national  auditing  service  who  are  agents  of  the  Treasury 

Department,  but  who  occupy  positions  of  independence  so 

far   as   the   conduct   of   their   investigation   is   concerned. 

Audit.          This  auditing  work,  it  need  scarcely  be  added,  is  of  huge 

dimensions. 


CHAPTER  XVI 

THE    BORROWING    POWER,    THE    NATIONAL    DEBT,    AND    THE 
NATIONAL   BANKING   SYSTEM 

NOT  all  national  expenditures  can  be  defrayed  out  of  Purpose 
income.     Extraordinary  undertakings  which  involve  great  j^fwin 
outlays,  such  as  the  financing  of  a  war  or  the  construction  power, 
of  an  inter-oceanic  canal  or  the  creation  of  a  great  fleet 
of  merchant  vessels,  cannot  be  carried  through  from  the 
funds  which  the  ordinary  revenues  provide.     All  govern- 
ments,   accordingly,    must    have    command    of    resources 
which  will  enable  them  to  handle  such  out-of-the-ordinary 
projects  when  the  need  arises.     The  constitution  provides 
for  such  eventualities  by  giving  to  Congress  the  unlimited 
right  "to  borrow  money  on  the  credit  of  the  United  States." 

This  is  one  of  the  few  powers  upon  which  the  constitu-  Absence 
tion  places  no  limits  whatsoever.     Congress   can  borrow  £/01IJlita~ 
as  much  as  it  pleases  and  in  whatever  manner  it  may  deem  upon  it. 
expedient.     There  was  a  good  reason  for  dealing  liberally 
with  the  federal  government  in  this  field  because  in  1787 
the  national  credit  was  at  its  lowest  point.     The  Congress 
of  the  Confederation  had  encountered  the  greatest  difficulty 
in  borrowing  upon  any  terms.     Moreover,  it  was  all  too 
plain  in  1787  that  the  new  central  government  would  start 
off  with  a  heavy  burden  of  debt  on  its  shoulders.     Bonds 
had  been  issued  during  the  Revolutionary  War  both  on 
the  authority   of  the   Confederation   and  by  the   several 
states  themselves.     The  former  would  certainly  be  a  charge  Beginnings 
upon  the  new  federal  administration,  and  the  latter  would 
in  all  likelihood  be  taken  over  as  a  part  of  the  national  debt, 
debt.     That,  indeed,  is  what  soon  came  to  pass. 

The  funding  of  these  obligations,  which  amounted  in  all 
to  over  $125,000,000,  was  the  work  of  Alexander  Hamilton, 

233 


234      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  legacy 
of  the  Revo- 
lutionary 
War. 

Alexander 
Hamilton's 
work  in 
funding  it. 


The  CivU 
War  debt. 

The  na- 
tional debt 
since  the 
CivU  War. 


The 

"Liberty" 
issues. 


who  served  as  Secretary  of  the  Treasury  during  the  years 
1789-1795.  To  Hamilton  also  is  due  the  beginnings  of  a 
system  of  federal  revenues  which  not  only  provided  for  the 
ordinary  expenses  of  government,  but  made  possible  the 
gradual  extinction  of  the  nation's  indebtedness.  During 
the  War  of  1812  some  new  bonds  were  issued,  but  twenty 
years  after  the  close  of  this  war  the  entire  national  debt 
had  virtually  been  paid  off.  Not  only  that,  but  there  was 
a  surplus  in  the  federal  treasury  which  Congress  distributed 
among  the  states  although  there  was  no  legal  obligation  to  do 
this.  For  twenty-five  years,  1836-1861,  the  United  States 
was  the  only  great  country  in  the  world  without  a  national 
debt  of  any  appreciable  dimensions.  Then  came  the  Civil 
War,  and  during  the  years  1861-1865  the  debt  rose  by  leaps 
and  bounds  to  an  unprecedented  height. 

At  the  close  of  this  war  the  interest-bearing  indebtedness 
of  the  nation  stood  at  about  three  billions  of  dollars,  but 
this  does  not  tell  the  whole  story,  for  much  borrowing  had 
in  reality  taken  place  through  the  issue  of  paper  currency. 

This  fiscal  heritage  of  the  conflict  was  steadily  reduced, 
however,  and  during  the  twenty  years  which  followed 
Lee's  surrender  the  national  debt  was  brought  down  to 
about  six  hundred  millions.1  Then  the  pendulum  began 
to  swing  once  more  in  the  other  direction.  In  the  second 
Cleveland  administration  bonds  were  issued  to  replenish 
the  gold  reserve  in  the  treasury,  and  later,  during  the  war 
with  Spain,  there  were  additional  borrowings.  The  build- 
ing of  the  Panama  Canal,  during  the  ensuing  era,  added 
several  hundred  millions  to  the  total,  so  that  the  national 
debt,  on  the  eve  of  America's  participation  in  the  European 
War,  was  about  a  billion  dollars  in  round  figures.  Viewed 
in  the  light  of  to-day  this  single  billion  of  only  a  year  or 
two  ago  seems  insignificant.  The  war  borrowings  for  the 
two  years  1917-1918  alone  amounted  to  nearly  twenty  bil- 
lions, or  almost  seven  times  the  highest  figure  ever  reached 
at  any  previous  time. 

During  the  first  quarter  of  the  nineteenth  century  the 
Supreme  Court  was  called  upon  to  interpret  the  scope  of  the 

1  For  the  exact  figures  and  further  details,  see  Henry  C.  Adams,  Public 
Debts  (N.  Y.,  1898). 


THE  BORROWING  POWER  235 

powers  conferred  by  the  borrowing  clause ;  in  other  words  Scope  of 
to  settle  the  question  whether  Congress  might,  under  cover  ^  powe7~ 
of  its  power  to  borrow  money,  establish  a  national  bank.  MayCon- 
The  constitution  contains  no  mention  of  banks  or  banking,  ^rter 
A  proposal  to  give  the  national  government  such  power  banks? 
in  express  terms  was  rejected  by  the  constitutional  con- 
vention.    Accordingly,  the  power  to  charter  and  regulate 
banks  might  at  first  glance  be  looked  upon  as  falling  within 
the  residuum  of  jurisdiction  reserved  to  the  states.1    But 
Alexander  Hamilton,  as  Secretary  of  the  Treasury,  outlined 
a  plan  for  the  establishment  of  a  great  national  bank,  some- 
what after  the  model  of  the  Bank  of  England,  and  in  1791 
Congress  chartered  the  first  Bank  of  the  United  States,  The  first 
the  ostensible  purpose  of  this  action  being  to  provide  a  united*1 
financial  institution  which  would  assist  the  national  govern-  states, 
ment  in  the  exercise  of  its  borrowing  power,  in  the  collection  1 
of  its  revenues,  and  in  the  custody  of  its  funds.2     Washing- 
ton was  in  serious  doubt  as  to  whether  he  should  sign  the 
bill  which  chartered  this  bank,  but  Hamilton  in  an  able 
state  paper  persuaded  him  to  give  his  signature    despite 
the  strenuous  opposition  of  Jefferson,  who  was  also  a  mem- 
ber of  the  Cabinet  as  Secretary  of  State.3 

The  first  Bank  of  the  United  States  continued  in  exist-  its  history 
ence  until  1811  when  its  twenty-year  charter  expired.     It  andend- 
had  a  capital  of  ten  millions  and  established  eight  branches 
in  different  parts  of  the  country.     It  served  as  a  depositary 
for  public  funds  and  also  loaned  the  government  consider- 

1  James  Madison,  as  is  well  known,  took  this  ground,  declaring  that 
the  establishment  of  a  national  bank  would  be  unconstitutional,  and  assert- 
ing that  the  claim  of  Congress  to  charter  a  bank  was  "condemned  by  the 
silence  of  the  constitution ;   was  condemned  by  the  rule  of  interpretation 
arising  out  of  the  constitution ;  was  condemned  by  its  tendency  to  destroy 
the  main  characteristics  of  the  constitution ;  was  condemned  by  the  exposi- 
tions of  the  friends  of  the  constitution  whilst  depending  before  the  people, 
etc." 

2  In  1781,  several  years  before  the  adoption  of  the  constitution,  the 
Bank  of  North  America  had  been  chartered  by  the  Congress  of  the  Con- 
federation.    This  institution,  however,  encountered  popular  opposition 
and  soon  surrendered  its  charter  from  the  Congress,  obtaining  instead  a 
charter  from  the  state  of   Pennsylvania.     See  Lawrence  Lewis,  History 
of  the  Bank  of  North  America  (Philadelphia,  1882). 

3  This  document  is  reprinted  in  H.  C.  Lodge's  edition  of  Hamilton's 
Works  (Federal  edition,  12  vols.,  N.  Y.,  1904). 


236      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  second 
Bank  of 
the  United 
States. . 


The 

question 
of  its  con- 
stitutional 
status. 


The  deci- 
sion in 
McCulloch 
vs.  Mary- 
land. 


Chief 
Justice 
Marshall  on 
the  implied 
power  to 
charter 
banks. 


able  sums  from  time  to  time.  The  bank  was  well  managed 
and  proved  profitable,  but  its  charter  was  not  renewed  in 
1811,  chiefly  because  it  had  aroused  the  opposition  of  many 
small  state  banks  whose  jealousy  of  the  national  institution 
was  now  strongly  reflected  in  Congress.1 

Five  years  later,  however,  the  financial  embarrassments 
caused  by  the  War  of  1812-1815  determined  Congress  to 
establish  the  second  Bank  of  the  United  States,  and  its  charter 
was  signed  in  1816  by  President  Madison,  whose  misgivings 
on  the  question  of  constitutionality  had  now  become  some- 
what mollified.  The  capital  of  this  bank  was  fixed  at 
thirty-five  millions  ;  it  was  empowered  to  issue  paper  money ; 
it  served  as  a  depositary  for  public  funds ;  it  assisted  the 
treasury  department  in  the  collection  of  the  public  revenues 
and  at  times  made  temporary  loans  to  the  national  govern- 
ment. Its  charter  was  to  run  for  twenty  years. 

Prior  to  1816  the  authority  of  Congress  to  charter  a 
bank  had  not  come  squarely  to  issue  before  the  Supreme 
Court,  but  the  second  Bank  of  the  United  States  had  no 
more  than  begun  its  operations  when  the  question  of  con- 
stitutionality was  brought  forward  in  a  way  which  enabled 
the  point  to  be  settled  for  all  time. 

In  1818  the  legislature  of  Maryland  imposed  a  stamp 
tax  on  the  bank's  paper  money,  and  the  cashier  of  the  Bal- 
timore branch,  McCulloch,  refused  to  pay  this  tax.  The 
matter  in  due  course  went  before  the  Supreme  Court  of 
the  United  States.  This  tribunal,  in  1819,  set  a  new  land- 
mark in  American  constitutional  development  by  its  opinion 
in  the  famous  case  of  McCulloch  vs.  Maryland?  The  deci- 
sion in  this  case,  written  by  Chief  Justice  Marshall,  has 
become  a  classic  of  American  jurisprudence.  It  is  the  most 
cogent  elucidation  ever  made  of  the  doctrine  of  "implied 
powers."  In  words  which  for  clearness  and  force  cannot 
be  improved  upon,  Marshall  laid  down  the  principle  that 
though  the  national  government  "is  limited  as  to  its  ob- 

1  The  Bank  of  the  United  States  had  also  allowed  more  than  two-thirds 
of  its  capital  stock  to  pass  into  the  hands  of  foreigners,  and  this  fact  was 
urged  as  an  additional  reason  for  not  renewing  its  charter.     For  the  history 
of  this  bank  see  J.  T.  Holdsworth,  The  First  Bank  of  the  United  States 
(Philadelphia,  1910). 

2  4  Wheaton,  316. 


THE  BORROWING  POWER  237 

jects,"  it  is  none  the  less  "supreme  with  respect  to  those 
objects/'  and  hence  that  where  an  express  object  is  author- 
ized by  the  constitution,  "any  means  adapted  to  the  end, 
any  means  that  tend  directly  to  the  execution  of  the  con- 
stitutional powers  of  government,  are  in  themselves  con- 
stitutional/' In  express  terms  the  constitution  had  given 
the  national  government  the  power  "to  lay  and  collect 
taxes"  and  "to  borrow  money  on  the  credit  of  the  United 
States."  It  had  also  expressly  granted  to  Congress  the 
right  "to  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers."  Putting 
these  provisions  together,  the  Supreme  Court  held  that 
Congress  must  be  allowed  discretion  in  choosing  the  sort 
of  laws  "necessary  and  proper"  for  carrying  out  its  un- 
doubted right  to  collect  revenue  or  to  borrow. 

Congress  being  thus  authorized  to  provide  its  own  finan- 
cial mechanism,  it  followed  that  any  administrative  agencies 
created  for  this  purpose  must  not  be  subjected  to  factious 
interference    by    the    states.     "If,"    declared    the    Court,  NO  state 
"the   states   may   tax   one   instrument   employed   by   the  J^Jjf* 
[national]  government  in  the  execution  of  its  powers,  they  cuiationor 
may  tax  any  and  every  other  instrument.     They  may  tax  panics 
the  mail ;    they  may  tax  the  mint ;    they  may  tax  patent  chartered 
rights ;    they  may  tax  the  custom-house ;    they   may  tax  £y 
judicial  process ;   they  may  tax  all  the  means  employed  by 
the  government  to  an  excess  which  would  defeat  all  the 
ends  of  government."     For  this  convincing  reason  the  law 
of  Maryland  which  taxed  the  circulation  of  the  United  States 
Bank  was  declared  unconstitutional. 

The  decision  in  this  case  was  of  the  highest  national  impor- 
importance,  for  it  set  the  authority  of  the  federal  govern- 
ment  upon  a  firm  and  sure  foundation.     Its  reasoning  is  a 
tribute   to   Marshall's  intellectual  power,   to  his  political 
sagacity,  and  to  his  mastery  of  the  English  tongue.1     Al- 

1  "Marshall  was  probably  the  greatest  judge  that  ever  lived,  when  one 
considers  the  wonderful  cogency  and  beauty  of  his  judicial'style,  his  states- 
man's foresight,  the  accuracy  of  his  legal  learning,  the  power  of  his  reason- 
ing, his  soundness  of  judgment,  his  wonderful  personal  influence  over  his 
colleagues,  and  the  fateful  influence  of  his  work  upon  the  structure  of  our 
great  government."  —  W.  H.  TAFT,  Our  Chief  Magistrate  and  His  Powers 
(N.  Y.,  1916),  p.  46. 


238      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Jackson's 
war  on 
the  Bank. 


Its  exodus. 


Banks  and 
banking 
from  the 
Jacksonian 
era  to  the 
Civil  War. 


The 

National 
Banking 
Acts  of 
1863-1865. 


though  not  relished  at  the  time  by  the  extreme  champions  of 
state  rights,  it  is  to-day  universally  conceded  to  have  marked 
a  triumph  of  union  over  sectionalism  and  to  have  saved 
the  nation  from  what  would  surely  have  been  the  first  of 
a  series  of  inroads  upon  its  constitutional  prerogatives.1 

The  second  United  States  Bank  came  to  an  end  in  1837, 
but  not  because  of  any  doubts  as  to  its  constitutional 
status,  nor  yet  because  it  lacked  prosperity.  It  was  drawn 
into  the  political  arena,  where  Andrew  Jackson  and  his  politi- 
cal supporters  waged  war  upon  it.  The  allegation  was  that 
managers  of  the  bank's  branches  in  different  parts  of  the 
country  were  showing  political  favoritism  in  making  loans, 
and  that  the  bank  itself  was  endeavoring  to  crush  local 
banking  institutions,  thus  aiming  to  become  a  great  financial 
monopoly.  This  line  of  attack  proved  effective  in  a  day 
of  strong  anti-capitalistic  feeling.  Jackson  vetoed  a  bill 
passed  by  Congress  for  renewing  the  bank's  charter  and 
withdrew  all  government  deposits  from  it.  Forced  to  the 
wall,  the  institution  was  in  1836  converted  into  a  state  bank, 
but  in  this  field  it  was  unsuccessful  and  finally  went  out  of 
existence  altogether.2 

Although  movements  for  the  establishment  of  a  new 
bank  with  a  federal  charter  were  set  afoot  from  time  to  time 
during  the  next  twenty-six  years,  none  of  them  resulted  in 
success.  The  banking  of  the  country  was  carried  on  during 
this  period  by  institutions  chartered  in  the  several  states. 
But  in  1863,  under  the  financial  stress  of  the  Civil  War, 
when  the  Secretary  of  the  Treasury  was  hard  pressed  in  his 
effort  to  sell  bonds  on  reasonable  terms,  Congress  was 
induced  to  pass  the  first  of  the  laws  which  laid  the  founda- 
tions of  the  American  national  banking  system  as  it  exists 
at  the  present  day. 

Briefly,  the  National  Banking  Act  of  1863,  as  consider- 
ably amended  by  other  statutes  passed  in  the  two  following 
years,  imposed  a  heavy  tax  upon  the  circulating  notes  of  all 
state  banks,  with  intent  to  drive  this  paper  currency  out 

1  See  J.  P.  Cotton,  Jr.,  editor,   The  Constitutional  Decisions  of  John 
Marshall  (2  vols.,  N.  Y.,  1905),  i,  302-345. 

2  The  full  history  of  its  vicissitudes  may  be  found  in  R.  C.  H.  Catterall's 
Second  Bank  of  the  United  States  (Chicago,  1903). 


THE  BORROWING  POWER  239 

of  existence.  It  then  provided  that  any  bank  incorporated 
under  the  new  law  might  issue  untaxed  circulating  notes, 
provided  it  bought  United  States  bonds  to  a  designated 
amount  and  deposited  these  bonds  in  Washington  as  security 
for  its  note  issues.  Fundamentally,  then,  this  legislation 
was  merely  a  scheme  to  create  an  artificial  market  for  gov- 
ernment bonds  at  a  time  of  great  national  need,  although  a 
secondary  purpose  was  to  substitute  uniform  bank  notes 
with  a  federal  guarantee  for  the  multifarious  and  voluminous 
issues  of  state  banks,  thus  placing  a  limit  upon  inflation. 
But  the  legislation  worked  out  surprisingly  well,  and  since 
the  war  its  main  provisions  have  been  retained  although 
many  amendments  to  it  have  been  made.  Nearly  eight 
thousand  national  banks  are  now  included  within  the  sys- 
tem. At  any  rate  the  federal  government's  present-day 
control  and  supervision  of  the  national  banking  system  is 
a  corollary  from  the  express  power  of  Congress  "to  borrow 
money  on  the  credit  of  the  United  States." 

The  supervision  of  the  national  banking  system  is  in  Super- 
charge of  the  Comptroller  of  the  Currency,  an  official  in  ^^^f 
the  Treasury  Department  who  is  responsible  not  only  for  banks, 
the    general   examination    of   their    accounts   but   for   the 
approval  of  applications  to  establish  new  banks.     He  has 
charge  of  the  corps  of  national  bank  examiners  who  go 
about  inspecting  the  banks,  one  by  one,  and  he  has  power 
to  intervene  whenever  a  bank  seems  to  be  insolvent. 

For  many  years  prior  to  1913  it  was  generally  recognized  Defects 
by  financial  authorities  that  the  national  banking  system  J^tkmai 
of  the  United  States  might  be  considerably  improved.     The  banking 
rigid  provisions  relating  to  the  reserves  were  regarded  as  Bystem- 
particularly  embarrassing  in  times  of  commercial  depres- 
sion.    All  national  banks  must  keep  on  hand  a  reserve 
amounting  to  a  designated  percentage  of  their  deposits,  but 
the  smaller  banks  have  been  permitted  to  keep  a  portion  of 
this  reserve  in  the  banks  of  certain  large  cities,  and  these 
latter  banks,  again,  have  been  allowed  to  keep  a  part  of  their 
reserves  in  the  banking  institutions  of  New  York  City.     This 
policy  of  fixing  the  amount  of  reserves  in  terms  of  definite 
percentages  and  of  tying  them  up  among  a  hierarchy  of 
banks  served  for  many  years  to  deny  the  American  banking 


240      THE  GOVERNMENT  OF  THE  UNITED  STATES 

system  that  considerable  measure  of  flexibility  which  is 
to  be  found  in  the  financial  arrangements  of  other 
countries.  The  reserve  requirements  proved  to  be  higher 
than  necessary  in  times  when  deposits  were  coming  in 
freely,  and  not  high  enough  when  heavy  withdrawals  were 
being  made.  When  a  financial  crisis  occurred,  as  in  1893, 
the  smaller  banks  did  not  find  it  easy  to  call  in  their 
reserves  promptly. 

The  To  .give  the  national  banking  system  greater  elasticity, 

reserve  therefore,  the  Federal  Reserve  Act  was  passed  by  Congress 
banking  in  1913.  By  the  provisions  of  this  statute  the  entire  terri- 
system.  torv  of  tke  Umted  States  is  divided  into  twelve  federal 
reserve  districts,  with  a  federal  reserve  bank  in  each.  The 
capital  stock  of  each  reserve  bank  is  contributed  by  banks 
within  the  district,  the  national  government  also  subscrib- 
ing if  necessary  to  make  up  the  amount.  Each  reserve 
bank  is  controlled  by  a  board  of  directors  chosen  in  part 
by  the  banks  who  own  stock  and  in  part  by  the  national 
government  through  a  body  known  as  the  Federal  Reserve 
[Board.  This  board  is  composed  of  the  Secretary  of  the 
'Treasury,  the  Comptroller  of  the  Currency,  and  five  other 
members  appointed  by  the  President.  These  twelve  federal 
reserve  banks  are  now  the  reserve  depositaries  for  such 
smaller  banks  as  have  subscribed  to  their  capital  stock,  and 
they  also  lend  funds  to  the  smaller  banks  upon  approved 
security  when  funds  are  needed.  The  Federal  Reserve 
Board  has  authority  to  change  the  percentage  of  reserves 
required,  and  each  of  the  twelve  federal  reserve  banks  has 
the  right  to  issue  paper  money.  In  time  these  notes  will 
replace  the  notes  which  have  been  issued  by  the  national 
banks.  The  new  system  thus  secures  leeway  in  the  amount 
•of  reserves  required;  it  discourages  the  piling-up  of  funds 
in  any  one  large  financial  centre ;  it  enables  small  banks  to 
,  get  their  reserves  quickly  when  needed  and  also  to  borrow 
or  rediscount  easily ;  and  finally,  it  provides  in  the  Federal 
Reserve  Board  a  central  authority  which  is  able  to  furnish 
the  entire  banking  interests  of  the  nation  with  guidance  in 
an  emergency.  It  gives  the  United  States,  in  a  word,  the 
larger  part  of  the  advantages  which  other  great  countries 
derive  from  their  centralized  banking  systems,  yet  it  does 


THE  BORROWING  POWER  241 

not  create  a  single  gigantic  institution  like  the  Bank  of 
England  or  the  Bank  of  France. 

These  agencies,  then,  the  national  banks  and  the  federal  The 
reserve  banks,  provide  the  government  with  an  adequate  ^national 
means  of  regulating  the  flow  of  currency,  collecting  the  borrowing, 
revenues,  and  borrowing  money.  Now  as  to  the  methods  by 
which  the  nationargovernment  exercises  its  power  to  borrow. 
The  most  common  plan  has  been  to  secure  loans  by  the 
issue  of  bonds.  These  bonds  are  promises  to  pay  on 
the  expiration  of  a  designated  period,  say  twenty,  thirty, 
or  forty  years,  with  interest,  at  a  stated  rate  during  the 
lifetime  of  the  bond.  For  the  most  part  the  national  gov- 
ernment has  borrowed  from  banks  or  groups  of  banks,  giving 
them  the  bonds  which  they  either  resell  to  private  investors 
or  deposit  at  Washington  as  security  for  their  own  circulat- 
ing notes.  But  at  times  the  bonds  have  been  offered  for 
public  sale,  and  subscriptions  have  been  taken  not  only 
by  banks  but  by  post-offices  and  other  government  establish- 
ments. To  facilitate  a  direct  and  general  sale  to  the  public, 
some  of  the  bonds  sold  during  the  Spanish  War  were  issued 
in  denominations  as  low  as  twenty  dollars,  and  the  "Liberty 
bonds"  issued  during  the  European  war  were  put  on  sale 
in  denominations  as  low  as  fifty  dollars.  Even  so,  how- 
ever, a  very  large  proportion  of  these  bonds  were  sold  to  the 
public  through  the  banks. 

Bonds  are  of  two  types,  registered  and  coupon.  The  Types  of 
former  are  registered  in  the  name  of  the  owner  upon  the  bond 
books  of  the  Treasury  Department.  The  interest  is  paid 
by  cheque  from  Washington  to  the  holder  whose  name  is 
so  registered.  Registered  bonds  can  be  transferred  only 
by  written  indorsement.  ^.Coupon  bonds,  on  the  other 
hand,  are  made  payable  to  bearer,  and  the  owner  secures 
his  interest  by  presenting  the  coupons  which  are  attached 
to  the  bond  and  which  are  also  payable  to  the  bearer. 
Coupon  bonds  are  transferable  by  mere  delivery.  The 
Treasury  Department  keeps  no  record  of  those  who  hold 
them.  For  permanent  investment  the  registered  bond 
is  preferred ;  the  holder  does  not  suffer  loss  if  his  bond  is 
stolen  or  destroyed ;  and  the  interest  payments  come  to 
him  regularly  without  any  action  on  his  part.  Coupon 


242      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Treasury 
notes. 


Borrowing 
by  the 
issue  of 
currency 


bonds  are  preferred  by  those  who  hold  bonds  for  speculation 
or  who  desire  to  have  securities  which  may  be  quickly 
turned  into  money  when  needed.  As  the  greater  part  of 
the  bonded  debt  of  the  United  States  prior  to  1917  was  held 
by  banks  and  other  institutions  of  investment,  the  registered 
bonds  formed  until  recently  the  major  part  of  the  total 
issues.  But  the  huge  borrowings  of  the  last  two  years, 
being  floated  largely  by  the  issue  of  coupon  bonds,  have 
changed  this  situation. 

From  time  to  time  the  United  States  has  also  borrowed 
money  by  the  issue  of  treasury  notes.  These  are  promissory 
notes  issued  in  denominations  of  from  five  to  one  thousand 
dollars  and  maturing  within  a  short  time,  usually  from  one 
to  three  years,  or  even  on  demand.  In  some  cases  they  have 
been  issued  bearing  interest,  in  other  cases  without  interest. 
During  the  Civil  War  these  treasury  notes,  of  all  varieties, 
were  issued  to  a  total  of  nearly  two  billion  dollars.  At  the 
close  of  the  war  most  of  them  were  converted  into  bonds. 
Those  which  remain  in  existence  bear  no  interest  and  have 
become  part  of  the  national  currency.  During  the  last 
few  years  large  issues  of  interest-bearing  treasury  notes 
have  also  been  put  on  the  market,  but  merely  as  a  prelim- 
inary to  the  selling  of  bonds,  the  notes  being  issued  to  provide 
money  until  the  bonds  could  be  sold  and  paid  for. 
>  Certain  issues  of  currency,  for  example  the  silver 
dollar,  the  silver  certificate,  and  the  fractional  coins,  have 
sometimes  been  referred  to  as  examples  of  a  method  of 
borrowing  money,  inasmuch  as  they  yield  more  to  the 
national  government  than  it  costs  to  issue  them.  Ordi- 
narily the  silver  dollar  does  not  cost  a  dollar  to  coin,  nor 
does  the  nickel  represent  five  cents'  worth  of  that  metal. 
The  difference  between  what  they  cost  and  what  the  govern- 
ment gets  for  them,  however,  is  a  profit  rather  than  a  loan. 
They  do  not,  at  any  rate,  form  part  of  the  interest-bearing 
debt  and  do  not  increase  the  burden  placed  upon  the  tax- 
payer. 

^  Bonds  issued  on  the  credit  of  the  United  States  are  not 
rtaxable  by  the  states  or  the  municipalities  without  the 
(consent  of  Congress.  This  is  a  logical  corollary  from  the 
general  rule  laid  down  in  Me  Culloch  vs.  Maryland.  Both 


THE  BORROWING  POWER  243 

the  bonds  themselves  and  the  income  derived  from  them  u.  s.  bonds 

may,  however,  be  made  subject  to  federal  taxation.  This,  subject  to 

nevertheless,  has  not  been  the  policy  of  Congress  until  state 


within  very  recent  years  and  then  only  with  reference  to        ouT  the 
bonds  which  have  a  relatively  high  rate  of  interest.     The  consent  of 
first  war  bonds  of  1917  were  made  exempt  from  all  taxation  Congress- 
whatsoever  ;  the  later  issues  gave  to  each  holder  a  limited 
exemption. 

In  no  case  has  there  ever  been  a  repudiation  of  the  na-  Repudia- 
tional  debt  of  the  United  States  or  any  part  of  it.     Repudia-  p^ikf 
tion  of  the  debts  owed  by  some  of  the  individual  states,  debts. 
however,  has  occurred  on  several  occasions.1     Where  such 
action  takes  place,  the  holder  of  a  repudiated  bond  has  noy 
effective  legal  redress.     He  cannot  sue  the  state  except  in 
its  own  courts,  and  even  there  he  has  no  status  as  a  plaintiff 
unless  the  state  gives  it  to  him,  which  it  is  not  likely  to  do. 
He  cannot  enter  suit  in   the   federal    courts,   because  the 
Eleventh  Amendment  prohibits  federal  courts  from  hear-/ 
ing  any  citizen's  suit  against  a  state. 

After  the  Civil  War  there  was  a  fear  in  financial  circles 
that  some  portions  of  the  national  debt  might  be  repudi- 
ated.    To  allay  these  misgivings  the  Fourteenth  Amend-  The  Four- 
ment  provided  in  1868  that  "the  validity  of  the  public  £^_ 
debt  of  the  United  States,  authorized  by  law,  including  ment  as  a 
debts  incurred  for  payment  of  pensions  and  bounties  for\ 
services  in  suppressing  insurrection  or  rebellion,  shall  not  be  ;  repudia- 
questioned."     It  was  furthermore  stipulated  that  neither  •* 
the  United  States  nor  any  state  of  the  Union  should  as- 
sume or  pay  any  debt  or  obligation  incurred  in  aid  of  in- 
surrection or  rebellion  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slave.     Debts 
incurred  by  the  Confederacy  or  by  any  state  of  the  Con-  1 
federacy  in  connection  with  the  Civil  War  were  thus  nullified 
by  constitutional  provision. 

The  burden  of  a  national  debt  may  at  times  be  lessened  The  prac- 
by  the  process  known  as  refunding.  The  government,  ^funding. 
when  bonds  are  issued,  may  reserve  the  right  to  pay  them 

1  Eleven  states,  mostly  in  the  South,  have  repudiated  some  of  their 
State  issues  at  various  times.  W.  A.  Scott,  The  Repudiation  of  State 
Debts  (N.Y.,  1893). 


244      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Absence 
of  a 

national 
debt  limit. 


Is  a  public 
debt  a 
public 
evil? 


off  at  any  time  after  a  designated  date.  If  at  that  date  the 
general  rate  of  interest  has  fallen,  it  may  secure  the  money 
to  make  the  repayment  by  the  issue  of  new  bonds  at  such 
lower  rates.  Or  at  the  expiry  of  the  term  designated  in 
the  bonds  it  may  offer  the  holders  their  choice  either  of 
cash  payment  or  of  new  bonds  bearing  a  lower  rate  of 
interest.  If  the  government,  for  example,  borrows  a  billion 
dollars  at  five  per  cent  in  war  time  on  bonds  which  are  to  run 
for  twenty  years,  this  does  not  mean  that  it  must  either  re- 
pay the  loan  at  the  expiry  of  that  period  or  keep  on  paying  in- 
terest at  five  per  cent.  It  can,  and  probably  will,  " refund" 
the  loan  at  its  expiration  by  the  issue  of  new  bonds  bear- 
ing only  four  or  perhaps  even  three  per  cent  interest.  This 
is  entirely  fair  to  the  original  bondholders,  who  get  their 
option  of  either  taking  cash  payment  as  promised  or  new 
bonds  at  current  rates.  It  is  thus  possible  to  lessen  the  real 
burden  of  a  national  debt  without  actually  paying  it  off. 

Many  of  the  states  have  placed  in  their  constitutions 
various  provisions  which  limit  the  total  amounts  which 
the  state  authorities  may  borrow  on  the  public  credit. 
They  have  even  more  rigidly  limited  the  amounts  which 
may  be  borrowed  by  counties,  cities,  and  towns.  But  there 
is  no  limit  on  the  amount  which  the  nation  may  borrow, 
because  none  was  placed  in  the  national  constitution. 
States  and  municipalities  are  often  prohibited  from  borrow- 
ing for  certain  purposes,  and  they  are  sometimes  required, 
when  they  do  borrow,  to  establish  a  sinking-fund  which, 
by  reason  of  the  annual  contributions  made  to  it  from  rev- 
enue, will  be  sufficient  to  extinguish  the  debt  at  its  maturity. 
No  such  limitations  are  placed  upon  the  borrowing  powers 
of  Congress.  It  may  borrow  for  any  purpose,  at  any  time, 
from  any  source,  and  without  making  provision  for  repay- 
ment at  all.  This  is  a  sweeping  power,  but  necessarily  so 
in  view  of  the  emergencies  which  may  arise. 

Until  within  the  last  generation  or  two  all  public  debts 
were  popularly  looked  upon  as  public  evils.  To  get  the 
nation  out  of  debt  altogether  was  deemed  to  be  an  end  worth 
making  sacrifices  for,  and  the  national  surplus  was  used 
to  lessen  the  load  even  when  public  improvements  were 
greatly  needed.  To-day,  however,  the  old  notion  has  passed 


THE  BORROWING  POWER  245 

away.  The  whole  national  bank  circulation  of  the  United 
States,  for  example,  rests  upon  evidences  of  public  indebted- 
ness. 

Economists  agree  that  the  creation  of  debt  for  certain 
purposes  and  within  reasonable  limits  is  entirely  justified. 
The  doctrine  propounded  by  the  first  Secretary  of  the 
Treasury,  Alexander  Hamilton,  that  a  public  debt,  if  not 
excessive,  is  a  source  of  public  strength  in  that  the  holders 
of  government  bonds  become  influential  factors  for  politi- 
cal stability  would  hardly  receive  general  acceptance  at  the 
present  day;  yet  the  opposite  contention  that  all  public 
debts  are  public  afflictions  is  still  further  from  popularity 
among  authorities  on  public  finance.  Enterprises  which 
result  in  permanent  or  semi-permanent  value  to  the  people, 
such  as  the  building  of  the  Panama  Canal,  or  the  purchase 
of  forest  reserves,  or  the  extension  of  national  territory 
ought  not,  in  all  fairness,  to  be  paid  for  entirely  by  the  tax- 
payers of  a  single  year ;  that  is,  they  ought  not  to  be  wholly 
paid  for  out  of  current  revenues.  Borrowing  money  in  such 
a  way  that  the  cost  will  be  gradually  liquidated  in  the  course 
of  a  term  of  years  is  the  fairer  plan,  provided,  of  course, 
that  this  policy  is  not  so  distorted  as  to  pile  up  huge  incre- 
ments for  future  generations  to  bear.  A  nation  may  be* 
both  prosperous  and  thrifty  while  yet  having  a  national 
debt  of  large  dimensions.  So,  too,  the  huge  national  ex- 
penditures which  result  from  participation  in  armed  conflict 
cannot  be  placed  entirely  upon  the  taxpayers  of  the  day,  for 
the  dead-weight  thus  imposed  upon  the  nation's  whole 
economic  system  would  handicap  production  and  thus 
serve  to  impair  its  military  resources.  Business  conditions 
take  time  to  adjust  themselves  to  a  new  and  unexpected 
situation,  hence  too  severe  a  dislocation  should  not  be 
brought  about  if  it  can  be  avoided  by  a  reasonable  exercise 
of  the  borrowing  power.  Practically  the  entire  debt  of  the 
United  States  has  been  incurred  for  one  or  other  of  two 
purposes,  public  improvements  or  war. 


CHAPTER  XVII 


Commerce 
and 

national 
prosperity. 


Commercial 
chaos 
before  the 
formation 
of  the 
Union. 


THE   POWER  TO  REGULATE   COMMERCE 

"THE  prosperity  of  commerce/7  wrote  Alexander  Hamil- 
ton in  1788,  "is  now  perceived  and  acknowledged  by  all 
enlightened  statesmen  to  be  the  most  useful  as  well  as  the 
most  productive  source  of  national  wealth,  and  has  accord- 
ingly become  a  primary  object  of  their  political  cares." 
It  was  in  recognition  of  this  truth  that  the  framers  of  the 
national  constitution  gave  to  the  federal  government  what 
have  proved  to  be  powers  of  paramount  importance  in 
the  matter  of  encouraging,  maintaining,  and  regulating  the 
commerce  of  the  several  states  both  with  foreign  coun- 
tries and  among  themselves.2 

The  chaotic  condition  of  American  commerce,  indeed, 
did  about  as  much  as  anything  else  to  bring  the  states 
together  in  constitutional  union.  After  the  close  of  the 
Revolutionary  War  some  discriminatory  rules  against 
American  commerce  were  made  by  Great  Britain,  and  the 
Congress  of  the  Confederation  had  no  way  of  making 
reprisal.  The  various  states  themselves  were  adopting 
commercial  tariffs  against  each  other.  Connecticut,  for 
example,  threw  her  ports  wide  open  to  British  shipping 

1  The  Federalist,  No.  12. 

2  The  clauses  in  the  national  constitution  directly  relating  to  the  regu- 
lation of  commerce  are  as  follows : 

The  Congress  shall  have  power  ...  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  states,  and  with  the  Indian  tribes.  (Article 
i,  section  8.) 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  state.  (Article 
i,  section  9.) 

No  preference  shall  be  given  by  any  regulation  of  commerce  or  revenue 
to  the  ports  of  one  state  over  those  of  another ;  nor  shall  vessels  bound  to, 
or  from,  one  state  be  obliged  to  enter,  clear,  or  pay  duties  in  another. 
(Article  i,  section  9.) 

246 


THE  POWER  TO  REGULATE  COMMERCE  247 

I  while  all  goods  imported  into  Connecticut  from  Massa- 
I  chusetts  were  subjected  to  duties.1  Such  commercial  dis- 
criminations, as  the  world  has  too  often  found  out,  lead 
eventually  to  retaliation  and  often  to  open  hostilities.  The 
mischief  was  great  and  the  dangers  for  the  future  were 
alarming.  Never  could  the  several  states  hope  to  live  in 
peace  and  amity  among  themselves  if  each  preserved  the 
right  to  secure  its  own  commercial  advantage  by  setting  at 
naught  the  welfare  of  all  the  rest.  The  forward-looking 
men  of  the  thirteen  states  realized,  therefore,  that  the  com- 
merce of  all  must  be  placed  under  uniform  direction  or  the 
"most  productive  source  of  national  wealth"  would  not  be 
available  in  proper  measure.  The  regulation  of  commerce 
must  be  made  uniform,  and  uniformity  could  only  be  had 
by  giving  the  regulatory  power  to  some  central  body. 

The  constitution,  therefore,  gives  to  Congress  complete  what  the 
power  to  regulate  commerce  with  foreign  nations  and  among  Ji^ives 
the  several  states,  but  subject  to  the  limitation  that  such  to  Congress 
regulation  shall  not  give  to  one  state  any  preference  over  jj*^^7 
another,  and  that  no  export  duties  may  be  levied.     These  over  com- 
pro visions  are  deceptively  simple  on  their  face;   in  reality ^merce- 
they  have  become,  in  their  application  to  present-day  com-  J 
merce  and  commercial  methods,   more  difficult  to  define  ;"rhe  expan- 
with  exactness  than  almost  any  other  powers  granted  in  the  !j°nof 
constitution.     They  were  framed   in  days  when  life  was  powers, 
simpler,  when  the  agencies  of  commerce  were  pack-wagons 
and  sailing  vessels,  when  there  were  no  steamships,  railroads, 
telegraphs,  or    telephones,  and  almost    no    manufacturing 
for  sale  outside  the  immediate  locality.     The  task  of  fitting 
these  phrases  of  the  eighteenth  century  to  the  intricate 
commercial  and  industrial  conditions  of  the  twentieth  has 
devolved  upon  the  Supreme  Court.     It  has  been  performed, 
however,  with    a    degree    of    persistence    and  of  ultimate 
success  which  provides  us  with  a  striking  illustration  of 
constitutional  expansion.     As  the  Supreme  Court  frankly 
avowed  in  one  important  decision,  the  commerce  power  has 
been  extended  "from  the  horse  with  its  rider  to  the  stage- 
coach, from  the  sailing  vessel  to  the  steamboat,  from  the 

1  For   many    other   examples   of   interstate   commercial   rivalry,    see 
A.  C-  McLaughlin,  The  Confederation  and  the  Constitution  (N.  Y.,  1905). 


248      THE  GOVERNMENT  OF  THE   UNITED  STATES 


The  first 
landmark 
in  this 
expansion : 
Gibbons  vs. 
Ogden 
(1824). 


coach  and  the  steamboat  to  the  railroad,  and  from  the  rail- 
road to  the  telegraph,  according  as  new  agencies  are  suc- 
cessively brought  into  use  to  meet  the  demands  of  increasing 
population  and  wealth.7' 

i     No  one  in  the  constitutional  convention  could  have  had 
even  a  remote  idea  of   the  vast  potentialities  which  lay 
I  concealed  in  these  three  words   "to  regulate   commerce" 
nor  did  the  full  import  of  the  authority  begin  to  be  realized 
until  at  least  a  generation  after  the  Union  was  established. 
)  The  decision  in  the  famous  case  of  Gibbons  vs.  Ogden  (1824) 
';  first  brought  home  to  the  states  the  extent  of  the  juris- 
v  diction  which  they  had  handed  over  to  Congress,  and  from 
!  that  time  forward  the  commerce  clause  has  been  steadily 
1  including  one  thing  after  another  within  its  broad  bounds. 
The  elasticity  of  the  written  word  finds  ampler  illustration 
here  than  in  any  other  field  of  American   constitutional 
development.     Words  and  phrases,   when  used  in   a  con- 
stitution, have  dynamic  properties.     Their  meanings  keep 
>step  with  social  and  economic  changes;    they  expand  to 
cover  the  necessities  of  each  new  age ;    they  signify  one 
'thing  in  this  generation  and  another  in  the  next.     Those 
who  deplore  the  cold  rigidity  of  written  constitutions  and 
laws  make  the  error  of  postulating  the  static  character  of 
legal  phraseology. 

In  endeavoring  to  explain  what  the  phrase  "to  regulate 
commerce"  means  to-day  one  is  confronted  with  an  initial 
difficulty.  The  phrase  has  never  been  authoritatively 
defined,  and  cannot  be.  The  Supreme  Court  has  never 
ventured  to  say  that  here  the  power  begins  and  there  it 
^ends.  An  authority  so  vast  and  so  steadily  expanding  does 
not,  indeed,  yield  to  exact  definition.  Yet  from  the  multitude 
of  'its  decisions  the  general  lines  of  jurisdiction  may  be 
staked  out,  always  with  the  reservation,  however,  that 
what  is  the  law  of  the  land  to-day  may  not  be  so  to-mor- 
row. 

What,    then,    is    the    commerce   which    Congress    under 
commerce?    certain  limitations  may  regulate?     We  have  the  word  of 
Chief   Justice  Marshall   that  "commerce   is   intercourse," 
but  that  does  not  carry  us  far  when  it  is  further  explained 
1  Pensacola  Tel.  Co.  vs.  W.  U.  Tel.  Co.,  96  U.  S.  1. 


Exact 

definition  of 
the  com- 
merce 
power  is 
impossible. 


What  is 


THE  POWER  TO  REGULATE  COMMERCE  249 

that  not  all  intercourse  is  commerce.1  Does  commerce  in- 
clude not  only  trade  in  merchandise  but  the  transportation 
of  passengers  and  the  sending  of  messages  by  telegraph  or 
by  telephone?  The  answer  is  that  the  term  "commerce/' 
whatever  it  may  have  meant  to  those  who  gave  Congress 
the  power  to  regulate  it,  includes  all  these  things  to-day.  It 
embraces  navigation  in  all  its  phases,  and  every  form  of 
transportation  by  land.  It  includes  the  transmission  of 
intangible  things,  such  as  messages  sent  by  wire  or  by  wire- 
less. It  has  broadened  its  scope  to  cover  transportation 
through  the  air  as  well. 

Mention  has  been  made  of  the  first  great  milestone  in  the  stages  in 
evolution  of  the  power  to  regulate  commerce,  the  decision  g^ng-of d" 
in  the  case  of  Gibbons  vs.  Ogden*     In  this  instance  the  the  term. 
Supreme  Court  held  that  commerce  among  the  states  is\ 
not  the  mere  buying  and  selling,  or  trading  in  goods,  but\ 
includes  all  the  instrumentalities  of  trade  such  as  vessels  1 
carrying  goods  or  passengers  from  the  ports  of  one  state  to7 
those  of  another.     Hence  it  was  declared  that  no   state 
might  prevent  the  use  of  its  own  waters  by  vessels  plying 
between  the  ports  of  two  different  states,  that  is,  by  vessels 
engaged  in  interstate  commerce.     This  was  but  the  firsl 
of  a  long  line  of  decisions,  which,  especially  during  the  last 
forty  years,  have  steadily  widened  the  federal  law  of  com- 
merce.    By  one  decision  the  term  "  commerce  "  has  been  held  Passenger 
to  include  passenger  traffic ;    by  another  to  include  tele-  an(*  freight 
grams ;    by   another   telephone   messages ;     while   by   still  telegrams, 
another  the  transportation  of  oil  in  pipe  lines  has  been  held  telePhone 
to  come  within  the  scope  of  the  term.     On  the  other  hand,   pipe  lines, 
it  has  been  declared  by  the  Supreme  Court  that  such  things  etc- 
as  traffic  in  bills  of  exchange  or  the  selling  of  fire  and  life 
insurance  policies  are  not  commerce.     Nor  does  it  in  any 
event  include  the  manufacture  of  goods  even  when  they  are 
intended  to  become  articles  of  interstate  commerce.     Com- 
merce does  not  begin  until  the  product  has  started  on  its 
way.     Commerce  may  begin  after  manufacture  has  been 
completed  but  is  not  a  part  of  it.3     In  a  word  the  term  * 
"commerce"    to-day    "embraces    navigation,    intercourse,    \ 

1  Brown  vs.  Maryland,  12  Wheat.  419  (1827).  2  Above,  p.  248. 

3  U.  S.  vs.  Knight,  156  U.  S.  (1895). 


LO 

n 


250      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Does  not  i 
include  bills 
of  exchange, 
insurance, 
or  manufac- 
ture. 


The  relation 
of  manufac- 
turingTo' 
federal 
control. 


1 


Congress 
cannot 
by  the  ex- 
ercise of  its 
commerce 
power, 
control  the 
incidents 
of  manu- 
facture. 

The  child- 
labor 
decision 
(1918). 


But  Con- 
gress may 
exercise 
Borne 
control 
through 
taxation. 


communication,  traffic,  the  transmission  of  persons,  and  the 
transmission  of  messages,"  1  but  does  not  include  banking 
transactions,  insurance,  or  manufacture.  All  commerce,  as 
thus  defined,  when  carried  on  either  with  foreign  countries 
or  among  the  several  states,  is  from  start  to  destination 
wholly  under  the  regulatory  power  of  Congress. 

When  it  is  said,  however,  that  manufacturing  has  not  been 
held  to  be  included  in  the  term  "  commerce,"  this  does  not 
mean  that  the  processes  and  incidents  of  industry  cannot 
be  to  some  extent  controlled  by  the  federal  government. 
All  large  industries  of  to-day  depend  on  a  large  area  for  their 
raw  materials  and  desire  a  wide  market  for  the  distribution 
of  their  products.  Their  import  of  materials  and  their 
export  of  products,  if  not  their  actual  work  of  manufacture, 
fall  within  the  scope  of  commerce.  They  buy  raw  materials 
in  one  state,  make  them  up  in  another,  and  sell  the  finished 
products  in  several  more.  Even  the  processes  of  manu- 
facture must  depend  to  some  extent  upon  the  regulations 
under  which  this  interstate  buying  and  selling  goes  on. 
But  the  extent  to  which  Congress  may  make  such  regulations 
is  not  well  defined.  During  the  years  immediately  preceding 
1918  it  was  assumed  in  many  quarters,  for  example,  that 
Congress  might  prohibit  the  sale  in  foreign  or  interstate 
commerce  of  goods  made  by  child-labor,  thus  placing  a 
damper  upon 'that  sort  of  employment.  But  the  Supreme 
Court  decided  in  1918  that  the  act  of  Congress  which  imposed 
such  prohibition  was  unconstitutional,  being  a  federal 
interference  in  a  matter  which  belonged  to  the  states 
alone.  For  the  time  being,  therefore,  it  is  settled  that 
Congress  cannot,  under  color  of  regulating  interstate  com- 
merce, dictate  the  conditions  under  which  manufacturing 
shall  be  carried  on.  On  the  other  nand,  the  Supreme  Court 
is  clearly  on  record  as  upholding  the  right  of  Congress  to 
tax  the  manufacture  of  a  product,  even  to  an  extent  which 
actually  operates  to  prohibit  manufacture.2  Manufactur- 
ing is  not  commerce  or  subject  to  regulation  as  such ;  but 
by  virtue  of  its  taxing  power  the  national  government  has 
a  method  of  controlling  to  some  extent  the  processes  and 

1  Champion  vs.  Ames,  118  U.  S.  321  (1903). 

2  The  Oleomargarine  Case  (McCray  vs.  U.  S.,  195  U.  S.  27),  1904. 


THE   POWER  TO  REGULATE  COMMERCE  251 

incidents  of  manufacture  whether  for  sale  within  the  bounds 
of  a  single  state  or  outside. 

So  much  for  a  short  survey  of  what  commerce  is.  When 
does  commerce  concern  a  single  state  alone,  and  under  what 
circumstances,  on  the  other  hand,  does  it  come  within  the 
scope  of  "  commerce  with  foreign  nations  or  among  the 
several  states"  ?  The  division  of  power  between  the  federal 
and  state  governments  on  this  point  is  now  well  settled, 
although  it  is  not  a  logical  division.  All  commerce  which 
begins  and  ends  wholly  within  the  bounds  of  a  single  state  is 
intrastate  commerce.  The  state  alone  can  deal  with  it. 
But  if  at  any  point  between  its  beginning  and  its  end  it 
passes  outside  the  boundaries  of  the  state,  no  matter  for 
how  short  a  distance,  the  whole  transaction  goes  out  of  the 
state's  jurisdiction  and  into  the  domain  of  Congress.  Goods 
shipped  from  Boston  to  New  York  are  under  federal  regula- 
tion from  one  place  to  the  other,  not  merely  while  crossing 
the  intervening  states.  In  other  words,  the  only  way  to. 
keep  from  coming  under  the  federal  commerce  power  is  to! 
live,  move,  and  have  one's  being  wholly  within  a  single 
state.  Under  present-day  conditions  of  general  economic 
intercourse  that  is  a  practical  impossibility.  The  federal, 
government  has  thus  become  the  great  regulator  of  American 
commercial  and  industrial  life.  That  is  why  economic 
problems  have  thrust  themselves  so  far  to  the  front  in 
discussions  of  national  policy. 

Having  pointed  out  in  general  terms  the  extent  of  the  Limitations 
commerce  power  possessed  by  Congress,  it  remains  to  indi-  °o^? of 
cate  more  specifically  the  limitations  placed  by  the  con-  Congress  to 
stitution  upon  the  exercise  of  this  authority.     In  the  first  ^feign6 
place  when  Congress  undertakes  to  regulate  foreign  com- \commerce. 
merce,  it  must  do  so  uniformly.     It  cannot  discriminate  in  ¥  . 
favor  of  one  section  of  the  country,  or  in  favor  of  one  part  I 
of   the   population  as   against   any  other.     If  it  imposes 
duties  upon  imports  coming  into  the  United  States  from 
foreign  lands,  those  duties  must  be  levied  at  the  same  rate 
in  all  ports  to  which  the  goods  may  come.     The  same  rules 
must  determine  the  method  of  valuing  the  goods,  collecting 
the    duties,    giving    refunds,  and    so    on.     Congress    must 
regulate  with  an  even  hand.     There  must  be  no  sectional 


252      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  tariff 

strument  of 
commercial 
regulation. 


Beginnings 

tarfffQer 
history. 


Hamilton's 


factures 
(1791). 


partiality  or  discrimination.  If  Congress  should  try  to  col- 
lect a  higher  duty  on  sugar  coming  from  Cuba  to  New  York 
than  on  sugar  coming  from  Cuba  to  New  Orleans,  its  action 
would  be  clearly  unconstitutional.  So  long  as  it  observes 
the  rule  of  uniformity,  however,  Congress  may  levy  duties 
either  as  a  means  of  regulating  commerce  or  of  securing 
revenue,  without  any  limitation  as  to  their  nature  or 
amount. 

Strictly  speaking,  a  tariff  imposed  for  revenue  only  is  im- 
Pose<^  ^7  virtue  of  the  taxing  power,  while  a  tariff  avowedly 
framed  for  protection  comes  more  properly  within  the  scope 
Q£  ^  commerce  power.  But  this  distinction  is  of  no 
practical  importance,  for  Congress  has  never  imposed  any 
duties  which  could  not  easily  be  justified  as  coming  well 
within  both  of  these  powers.  A  word  on  the  tariff  policy  of 
Congress  may  not  inappropriately  be  added  here,  for  tariff 
questions  have  bulked  large  in  the  history  of  American 
politics,  more  consistently  so,  perhaps,  than  any  other  single 
issue  or  group  of  issues.1  To  begin  with,  the  prevailing 
opinion  in  the  thirteen  states  at  the  close  of  the  Revolution- 
ary  War  ieaned  rather  strongly  to  the  doctrine  of  free 
trade.  That  was  natural,  because  the  taxing  of  trade  by 
parliament  had  been  one  of  the  causes  of  the  war.  But 
when  the  constitution  had  been  adopted  and  a  new  national 
government  established,  one  of  the  first  acts  of  Congress 
was  to  enact  a  tariff  in  which  the  desirability  of  protecting 
the  industries  of  the  country  was  frankly  asserted.  The 
duties  imposed  by  this  first  tariff  of  1789  were  relatively  low, 
but  they  mark  the  beginning  of  the  protectionist  movement. 

This  movement  soon  gained  force,  moreover,  by  reason  of 
^e  C°gen^  arguments  put  forth  in  its  behalf  by  Alexander 
Hamilton  in  his  famous  Report  on  Manufactures  (1791),  a 
document  which  still  ranks  as  a  classic  of  protectionist 
literature.  Nevertheless,  the  duties  on  imports  continued 
to  be  fixed  at  low  figures,  and  there  was  little  in  the  way  of 
tariff  controversy  until  the  war  with  England  began  in 
1812.  Duties  were  then  doubled,  and  when  the  war  was 
over,  they  were  not  materially  reduced.  During  the  next 

1  For  a  full  narrative  see  F.  W.  Taussig,  Tariff  History  of  the  United 
States  (6th  ed.,  N.  Y.,  1914). 


THE  POWER  TO  REGULATE  COMMERCE  253 

two  decades,  indeed,  they  kept  going  up;   the  principle  of  The  tariffs 
tariff-for-revenue  being  relegated  to  the  background,  while  £^£0  ^ 
protectionist    sentiment    gained    headway.     The   northern  ceding  the 
states  favored  protection,  and  they  were  for  the  time  in  the  Clvil  War' 
ascendant.     By    1832   the  tariff  had   become   a   powerful 
weapon  of  industrial  protection.     Then  came  a  reaction, 
slow  at  first  and  temporarily  interrupted  on  one  occasion, 
but  gaining  in  impetus  as  the  years  went  by.     The  tariff 
was  revised  downward  from  time  to  time  until  it  was  sub- 
stantially upon  a  revenue  basis  once  more. 

The  Civil  War  inaugurated  a  third  period  in  tariff  history.  The  Civil 
So  much  money  was  needed  to  finance  the  struggle  that  War  tanffs- 
duties  again  shot  up  to  high  levels.  And  when  the  war 
ended,  the  need  of  revenue  to  liquidate  the  debt  was  urged 
as  a  reason  for  keeping  the  duties  where  they  were.  The 
Republicans  were  in  the  saddle,  and  they  were  committed 
to  the  policy  of  protection.  So  firmly  did  the  gospel  of 
protection  seem  to  be  anchored  in  the  public  mind  that 
General  Hancock,  the  Democratic  candidate  for  the  presi- 
dency in  1880,  suggested  that  the  tariff  was  nothing  more 
than  a  "  local  issue."  But  it  soon  became  a  national  issue 
of  great  prominence,  and  with  various  ups  and  downs  it  has 
not  ceased  to  be  such.  On  a  dozen  or  more  occasions  since  Tariff  de- 
1880  Congress  has  revamped  the  tariff,  revising  it  up  or 
revising  it  down,  narrowing  or  widening  the  free  list ;  but 
it  has  never  departed  altogether  from  the  principle  of  pro- 
tection. Congress  continues  to  regulate  foreign  commerce 
by  taxing  it  for  the  benefit  of  American  industry.  The 
constitutionality  of  its  power  to  do  so  is  not  doubtful  in  the 
slightest  degree.  The  right  to  regulate  commerce  includes 
the  right  to  tax  imports  or  even  to  prohibit  imports  al- 
together. 

In    the    enactment    of    tariff   legislation,    however,    the  The  proced- 
national  legislature  has  not  always  shown  itself  at  its  best.]  ^esifis^no 
The  machinery  of  Congress  is  not  well  adapted  to  secure  thej  well 
best  results  in  tariff-making.     Since  1861  all  tariff  measures  tariff-mak°- 

ing. 

1  Hancock's  words  were  "the  tariff  is  a  local  affair, "  but  his  dictum  has 
passed  into  popular  currency  as  "a  local  issue."  What  he  meant  was  that 
the  country  as  a  whole  favored  protection  but  that  every  local  area 
wanted  a  different  sort  of  tariff. 


254      THE  GOVERNMENT  OF  THE  UNITED  STATES 

have  been  framed  by  the  Ways  and  Means  Committee  of 
the  House  of  Representatives.  After  this  committee  has 
prepared  the  bill  and  its  accompanying  schedules,  the 
measure  is  taken  up  by  the  entire  House.  Here  it  may  be 
amended  at  will  in  the  interest  of  any  proposition  that  can 
secure  a  majority.  Then  the  bill  as  amended  goes  to  the 
Senate,  where  the  process  of  overhauling  is  continued, 
and  in  the  end  it  invariably  goes  back  to  the  House  again. 
To  reconcile  whatever  differences  may  exist  between  the 
action  of  the  two  chambers  a  Committee  of  Conference  is 
appointed,  and  this  committee  makes  the  final  readjust- 
ments. In  the  end  the  tariff  is  altogether  likely  to  be  a 
medley  of  compromises  and  trades,  bearing  little  resemblance 
to  the  measure  as  originally  drawn  and  with  no  one  directly 
responsible  for  its  final  form.  On  rare  occasions,  however, 
this  has  not  been  the  case.  When  one  political  party 
controls  a  working  majority  in  both  House  and  Senate,  a 
tariff  bill  can  be  drawn  and  pushed  through  without  sub- 
stantial change  if  the  leaders  are  agreed  upon  what  they 
want  and  if  they  have  the  support  of  the  President.  That  is 
what  happened  in  1913.  But  the  ordinary  vicissitudes  of 
American  politics  are  such  that  legislative  and  executive 
solidarity  of  this  nature  is  quite  the  exception. 

The  Tariff  To  better  this  situation  resort  has  been  had  to  the  ex- 
Commission.  peciient  of  a  tariff  commission.  The  first  step  in  this  direc- 
tion was  taken  as  early  as  1865,  but  the  work  of  the  com- 
mission appointed  in  that  year  amounted  to  little  and  it 
soon  went  out  of  existence.  Then  in  the  early  eighties 
another  attempt  was  made.  A  commission  of  nine  members 
was  appointed ;  it  studied  tariff  questions  carefully  and 
made  recommendations  to  Congress,  but  the  latter  gave 
little  heed  to  its  advice.  No  further  steps  towards  a  more 
efficient  tariff  policy  were  taken  until  1909,  when  Congress 
provided  for  the  creation  of  a  Tariff  Board  made  up  of  three 
members  appointed  by  the  President.  The  duties  of  this 
board  were  to  investigate  and  to  report  upon  the  condition 
of  various  American  industries,  their  relation  to  the  tariff, 
their  production-costs,  the  rate  of  wages  paid  in  such  in- 
dustries, and  the  rates  paid  in  corresponding  manufactures 
in  other  countries.  But  before  this  board  could  accomplish 


THE  POWER  TO  REGULATE  COMMERCE  255 

more  than  a  small  part  of  the  work  planned  for  it,  Congress 
refused  to  continue  the  appropriations  for  its  support  and 
it  went  out  of  existence  in  1912.  The  sentiment  in  favor  of  1 
some  such  body  would  not  down,  however,  and  in  19 16// 
Congress  was  persuaded  by  President  Wilson  to  provide 
once  more  for  a  tariff  commission.  This  board  now  consists 
of  five  members  appointed  by  the  President,  one  of  the 
number  being  designated  as  chairman.  Its  duties  are  to 
study  the  tariff  needs  of  the  country  from  every  point  of 
view  and  to  report  annually  with  recommendations.  It 
has,  of  course,  no  power  to  make  any  changes  in  the  tariff, 
its  functions  being  of  an  informational  and  advisory  nature 
only.  Even  so,  its  work  may  be  of  the  highest  value  in 
adjusting  future  tariffs  to  the  actual  needs  of  the  country, 
whether  for  revenue  or  protection,  rather  than  leaving 
the  matter  a  prey  to  partisan  and  sectional  intriguery. 

By  virtue  of  its  power  to  regulate  foreign  commerce  j  The  control 
Congress  has  also  passed  numerous  laws  relating  to  the[  °v 
immigration  of  aliens.  These  laws  prescribe  the  conditions  gration. 
under  which  immigrants  may  enter  the  United  States  and} 
exclude  some  classes  of  aliens  altogether.  For  example,  the; 
federal  laws  exclude  all  persons,  except  those  engaged  in  the 
various  professions,  who  come  to  the  United  States  to 
perform  labor  under  contracts  made  before  their  arrival. 
They  also  prohibit,  with  certain  exceptions,  the  immigration  f 
of  Chinese.1  More  recently  a  literacy  test  has  been  pro-*?, 
vided  by  law  for  all  otherwise  admissible  immigrants. 
Among  those  inadmissible  under  all  circumstances,  however, 
are  insane  persons,  those  likely  to  become  public  burdens, 
or  afflicted  with  serious  ailments,  polygamists,  anarchists, 
and  persons  who  have  been  convicted  of  serious  crimes. 
Admissible  aliens  are  required  to  pay,  upon  entering  the 
United  States,  a  small  head  tax. 

The  administration  of  these  rules  is  in  the  hands  of  the  How  the 
commissioner-general  of  immigration,  an  officer  appointed  ^™iaws 
by  the  President.     At  each  port  of  entry  for  immigrants  are  admin- 
there  is  a  board  of  inquiry,  under  his  jurisdiction,  and  this  lstered- 
board  determines  whether  an  immigrant  is  entitled  to  enter. 
If  it  decide  that  he  is  not  entitled  to  be  admitted,  he  is 

1  The  exceptions  include  students,  merchants,  and  professional  men. 


256      THE  GOVERNMENT  OF  THE  UNITED  STATES 

ordered  to  be  deported  and  the  steamship  company  bring- 
ing him  in  must  take  him  away.  Appeals  from  the  deci- 
sions of  these  boards  may  be  carried  to  the  commissioner, 
however,  and  as  a  last  resort  to  the  Secretary  of  Com- 
merce. There  is  no  appeal  to  the  courts  from  the  Secre- 
tary's decision. 

Methods  of   j    It  is  by  means  of  the  tariff  and  the  immigration  laws  that 
SterstaS?    /Congress  chiefly  exercises  its  power  to  regulate  commerce 
commerce,    /with  foreign  nations.     Commerce  among  the  several  states, 
on  the  other  hand,  is  an  entirely  different  matter  to  which 
these  laws  have  obviously  no  direct  relation.     Interstate 
commerce  has  been  the  subject  of  many  regulating  laws 
relating  not   only  to   the   rates   charged   and  the   service 
rendered  by  transportation  companies  but  to  combinations 
in  restraint  of  trade  between  the  states,  to  unfair  com- 
petition, the  inspection  of  food  and  drugs,  and  to  a  multitude 
of    other    matters.     These    laws,  -  however,    are    not    self- 
enforcing,  hence  a  considerable  amount  of  administrative 
machinery  has  been  created  to  see  that  their  various  provi- 
sions are  duly  applied.     The  scope  of  the  laws,  in  fact, 
I  *  may  best  be  understood  from  a  general  survey  of  the  work 
i   which  these  federal  regulating  bodies  perform. 
The  First  in  point  of  importance  among  these  administrative 

commerce  regu^atmg  bodies  is  the  Interstate  Commerce  Commission. 
It  was  established  in  1887  and  at  the  outset  consisted  of  five 
members  named  by  the  President.  The  number  of  members 
position,  j  has  subsequently  been  increased  to  nine  and  the  powers  of 
the  commission  have  also  been  greatly  widened  during 
the  last  thirty  years  by  various  acts  of  Congress.1 
its  The  functions  of  the  Interstate  Commerce  Commission 

functions.  :  inciuc[e  the  general  carrying  out  of  the  federal  laws  relating 
to  steamship  and  railroad  companies,  express  and  sleeping 
car  companies,  telegraph  and  telephone  companies,  and 
oil  pipe  companies,  all  when  engaged  in  interstate  commerce. 
It  may  investigate,  either  upon  complaint  made  to  it  or  on 
its  own  initiative,  any  allegations  of  overcharge,  or  faulty 

1  The  Acts  of  March  2,  1889,  and  of  February  11,  1893  ;  the  Hepburn 
Act  of  June  29,  1906 ;  the  Act  of  June  18,  1910,  and  so  on.  Members  of 
the  commission  are  paid  salaries  of  $10,000  per  year  and  are  appointed  for 
seven-year  terms. 


Commis- 
sion: 
Its  com- 


THE  POWER  TO  REGULATE  COMMERCE  257 

service  or  discrimination  in  rates.  By  the  Act  of  1906  ' 
the  commission  is  authorized  to  fix,  when  petitioned  to 
do  so  and  after  proper  hearings,  the  maximum  rates  to  be 
charged  and  also  to  make  reasonable  rules  as  to  service. 
The  Act  of  1910  further  enlarged  these  powers  by  em- 
powering the  commission  to  prescribe  maximum  charges 
even  when  no  complaint  against  existing  rates  had  been 
filed  with  it. 

As  the  regulations  now  stand,  all  railway  rates  in  inter-|  The  regu- 
state  commerce  must  be  reasonable  in  the  judgment  of  thefj^n  ° 
commission ;  there  must  be  no  favoritism  as  between 
different  shippers  or  patrons,  no  rebates,  and  no  dis- 
crimination against  any  person  or  locality.  With  certain 
specified  exceptions  no  free  passes  may  be  given ;  and  no 
railroad  is  allowed  to  transport  any  merchandise  which  it  is 
itself  engaged  in  producing.  There  are  many  other  regu- 
lations applying  to  all  companies  engaged  in  interstate 
commerce.  Schedules  of  rates  must  be  public,  kept  open 
to  inspection,  and  must  not  be  changed  without  due  notice 
to  the  commission,  which  may  withhold  its  approval  of 
the  changes.  All  the  companies  must  keep  their  accounts 
in  the  way  which  the  commission  prescribes  and  must  make 
periodical  reports  to  it.  It  will  be  seen,  therefore,  that  the 
commission  has  functions  of  a  wide  variety  and  great  in> 
portance.1  It  is  the  country's  most  powerful  administrate^ 
tribunal.  In  addition  to  all  these  things,  moreover,  it 
was  given,  a  few  years  ago,  the  enormous  task  of  securing  a 
physical  valuation  of  all  the  railroads  in  order  that  a  more 
intelligent  determination  of  rates  might  be  made  possible. 

From  the  rulings  of  the  Interstate  Commerce  Commission  j  Appeals 
an  appeal  may  be  taken  on  matters  of  constitutional  privilege  |  ^™Jj£ 
to  the  federal  courts.     There  is  no  escape  from  the  necessity  Jaion's 
of  granting  this  right  of  appeal.     The  constitution  does  not  rulings- 
permit  Congress  to  endow  the  commission  with  final  powers. 
No  law  of  the  land  may  deprive  a  citizen  or  a  corporation 
of  judicial  protection  against  a  deprivation  of  their  prop- 
erty.    Hence  the  regular  federal  courts  have  many  appeals 
from  decisions  of  the  commission  brought  before  them,  so 

1  During  the  period  in  which  the  railroads  are  under  federal  operation 
(see  below,  p.  259)  these  functions  are  naturally  diminished. 

8 


258      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  divi- 
sion of 
authority 
over 

commerce   j 
between 
federal  and 
state  gov- 
ernments. 


many,  indeed,  that  these  appeals  form  a  serious  tax  upon 
their  time.  In  order  to  lighten  this  load,  Congress  in  1910 
established  a  new  Commerce  Court,  to  be  composed  of 
judges  selected  from  the  federal  circuit  courts.  This  new 
tribunal  was  to  hear,  in  the  first  instance,  all  appeals 
from  the  orders  of  the  Interstate  Commerce  Commission. 
The  Commerce  Court,  however,  soon  came  into  disfavor  by 
its  frequent  reversals  of  these  rulings,  and  in  1913  it  was 
abolished. 

It  should  again  be  pointed  out,  even  at  the  risk  of  over- 
emphasis, that  the  Interstate  Commerce  Commission  has 
no  authority  over  intercourse  which  keeps  strictly  within 
the  bounds  of  a  single  state.  So  far  as  such  commerce  is 
concerned,  each  state  provides  its  own  regulations  and  its 
own  regulating  body,  commonly  known  as  a  railroad 
commission  or  public  service  board.  This  division  of 
authority  over  transportation,  telegraph  and  telephone 
companies  has  been  a  great  source  of  friction  and  of  working 
at  cross  purposes.  Every  large  railroad  does  both  sorts  of 
business,  carrying  some  goods  and  passengers  from  one  point 
to  another  within  the  same  state  under  state  regulation, 
and  carrying  other  goods  and  passengers  between  points  in 
different  states  under  federal  regulation.  The  states, 
moreover,  regulate  the  organization,  the  capitalization,  and 
the  borrowing  powers  of  these  companies  (because  each 
obtains  its  charter  from  the  state  and  not  from  the  federal 
authorities),  while  the  nation,  through  the  Interstate 
Commerce  Commission,  is  usually  the  deciding  factor  in 
determining  the  revenues  and  the  conditions  of  service. 
The  spirit  and  methods  of  regulation  have  not  always  been 
the  same  from  both  quarters,  hence  the  double  and  divided 
supervision  has  in  many  cases  unreasonably  hampered  the 
railroads  in  their  efforts  to  give  good  service  at  fair  cost. 
Regulation  can  never  be  altogether-  satisfactory  until  it  is 
wholly  placed  in  the  same  hands,  that  is  to  say  until  some 
one  authority  is  vested  with  power  to  control  the  organi- 
zation, borrowing  powers,  income,  rates,  service,  hours  of 
labor,  and  every  other  incident  of  transportation.  All 
such  problems  are  interlocking  and  no  one  can  be  solved 
without  regard  to  the  others.  The  solution  of  the  matter 


THE  POWER  TO  REGULATE  COMMERCE  259 

is  not  a  simple  one,  however,  for  there  are  serious  objections 
to  vesting  all  of  this  power  in  the  hands  of  the  federal 
government. 

On  December  27,  1917,  the  President  of  the  United  States,  Federal 
by  virtue  of  war  powers  conferred  upon  him  by  Congress,  ^rraa^n  of 
took  over  the  operation  of  all  the  important  railroads  of  the  roads  in 
country,  placing  them  for  the  time  being  under  a  Director-  war  time- 
General  named  by  himself.     In  the  spring  of  1918  Congress 
by  law  provided  that  the  owners  of  the  railroads  should  be 
compensated  during  the  period  of  federal  operation  by  being 
guaranteed  a  net  income  equal  to  the  average  net  earnings/ 
of  the  three  preceding  years.     This  statute  likewise  pro- 
vided for  the  physical  upkeep  of  the  roads  and  for  their 
re-delivery  to  the  owners  in  as  good  condition  as  when 
taken  over,  this  return  to  private  operation  to  take  place 
not  more  than  twenty-one  months  after  the  close  of  the 
war.     The  President  was  given  authority  to  fix  rates  and 
terms  of  service  subject  to  the  approval  of  the  Interstate 
Commerce  Commission,  but  all  such  determinations  of  the 
President  were  authorized  to  take  effect  at  the  date  of 
their  issue  and  to  remain  in  effect  until  overruled. 

Another  important  agency  of  Congress  in  carrying  out  its!  The  Federal 
laws  relating  to  interstate  commerce  is  the  Federal  Trade  Trade 

rv  •  •  IT  — •"" •— -*        »  L/ommis- 

Commission,    established    in    1914.      Its    organization    has  sion. 
been  already  described.2     The  commission's  functions  are  jf,^ 
twofold.     In  the  first  place  it  is  charged  with  the  duty  ofl. 
preventing    unfair    competition    in    foreign    or    interstate;1 
trade  by  manufacturers  or  manufacturing  corporations  or 
any    other    concerns    except  banks  and   common  carriers. 
The  latter  are  under  separate  federal  supervision,  one  under 
the  Comptroller  of  the  Currency  and  the  other  under  the 
Interstate    Commerce    Commission.     The    Federal  .Trade 
Commission  may,  after  due  investigation  and  hearings,  issue 
orders  designed  to  prevent  unfair  competition,  but  appeals? 
from  such  orders  may  be  taken  to  the  Circuit  Court  of 
Appeals  and  from  its  decision,  again,  to  the  Supreme  Court. 
The  other  function  of  the  commission  is  to  investigate,  when 

1  This  commission  took  over  the  powers  of  the  federal  Bureau  of  Cor- 
porations which  had  been  created  in  1903. 

2  See  above,  p.  140. 


260      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

attempts 
to  suppress^ 
combina- 
tions in 
restraint 
of  trade. 


The 

Sherman 
Anti-Trust    / 
Law  of 
1890. 


The 

Northern 

Securities 

Case 

(1904) 


Other 
decisions 
under  the 
Sherman 
Act. 


asked  to  do  so,  the  facts  in  any  judicial  proceeding  which 
may  be  begun  by  the  federal  government  to  dissolve  an 
illegal  combination. 

Combinations  organized  for  the  purpose  of  stifling 
competition  or  otherwise  restraining  interstate  trade  have 
long  been  under  the  ban.  It  is  a  principle  of  the  common 
law  that  all  combinations  designed  to  restrain  trade  un- 
reasonably are  illegal.  This  was  the  legal  situation  in  the 
United  States  until  1890.  In  that  year,  however,  Congress 
went  a  step  further  and  passed  a  law,  commonly  known  as 
the  Sherman  Anti-Trust  Act,  the  first  provision  of  which 
was  as  follows:  "Every  contract,  or  combination  in  the 
form  of  trust  or  otherwise,  or  conspiracy  in  restraint  of 
trade  or  commerce  among  the  several  states  or  with  foreign 
nations,  is  hereby  declared  to  be  illegal."  This  provision, 
it  will  be  noted,  makes  no  distinction  between  combinations 
which  are  unreasonable  and  those  which  are  not.  Going 
further  than  the  common  law  its  wording  seemed  to  forbid  all 
combinations  in  restraint  of  trade,  whatever  their  nature. 

For  a  dozen  years  or  more  this  provision  slumbered  on 
the  statute  books ;  l  but  in  1904  it  was  brought  to  activity 
by  the  decision  of  the  Supreme  Court  in  the  Northern  Securi- 
ties Case.2  This  decision  arose  out  of  an  action  entered  by 
the  federal  authorities  to  dissolve  what  amounted  to  a  virtual 
merger  of  two  great  railroads,  the  Northern  Pacific  and  the 
Great  Northern,  through  the  agency  of  a  holding  corpora- 
tion known  as  the  Northern  Securities  Company,  which  had 
acquired  a  majority  of  the  common  stock  of  each  railroad. 
The  Supreme  Court  held  that  the  combination  was  in  re- 
straint of  trade  and  ordered  it  to  be  dissolved. 

Then  came  some  other  decisions,  notably  in  the  Standard 
Oil  Company's  Case  (1911)  and  the  American  Tobacco 
Company's  Case  (1911),  which  held  that  these  concerns 
were  also  combinations  in  restraint  of  trade  and  ordered 
their  dissolution.  But  in  rendering  its  decision  in  these 
cases  the  Supreme  Court  gave  for  the  first  time  a  definitive 


1  In  1895  the  Supreme  Court  decided  (U.  S.  vs.  Knight  Co.,  156 U.  S.  1) 
that  the  Sherman  Act  did  not  forbid  the  merging  of  manufacturing 
companies. 

2  Northern  Securities  Co.  vs.  U.  S.,  193  U.  S.  197  (1904). 


THE  POWER  TO  REGULATE  COMMERCE  261 

interpretation  of  the  Sherman  Act.     The  court  explained 

that  the  mere  existence  of  a  combination  in  relation  to 

trade  did  not,  according  to  the  provisions  of  the  Sherman 

Act,  render  it  illegal,  but  that  every  such  combination  must 

be  adjudged  in  accordance  with  its  purpose  and  in  the  light  of 

reason.     Hence  the  court,  although  it  held  these  particular 

concerns  to  be  illegal,  set  forth  the  principle  that  it  would  not 

order  the  dissolution  of  combinations  merely  because  theyf 

happened  to  restrain  trade  but  only  when  it  appeared  thai 

they  were  able  and  ready  to  restrain  trade  unreasonably^ 

This  dictum  passed  into  popular  discussion  as  "the  rule  of  The  "rule 

reason."     The  gist  of  the  rule  is  that  while  the  exact  wording  of  reason-" 

of  the  Sherman  Act  differs  from  the  old  rule  of  the  common 

law  with  reference  to  combinations  in  restraint  of  trade, 

it  was  not  the  intent  of  Congress  to  change  that  rule  in 

substance   but   merely   to   provide   for   its   more   efficient 

application. 

In  its  practical  applications  the  Sherman  Act  has  clearly/  Merits  and 
demonstrated  the  inferiority  of  purely  legislative  as  compared]  th^Anti- 
with  the  administrative  regulation  of  trade.  Its  enforcement  1  Trust 
no  doubt  put  an  end  to  some  huge  commercial  abuses  but,  Law' 
on  the  other  hand,  it  has  in  many  cases  proved  an  obstacle 
to  the  proper  consolidation  of  business  in  the  interest  of 
economy.  Competition  is  often  a  prolific  source  of  wasteful- 
ness so  that  in  the  end  the  public  gains  nothing  from  it. 
When  the  national  government  in  1917  took  over  the  opera- 
tion of  the  railroads  it  at  once  proceeded  to  do  on  an  un- 
paralleled scale  what  it  had  always  prevented  the  railroads 
themselves  from  doing.  It  put  everything  under  central 
control,  eliminated  duplications  in  service,  cut  away  every 
vestige  of  competition  and  operated  every  mile  of  trackage 
as  part  of  one  giant  transportation  monopoly.  Enormous 
savings  were  made  in  this  way,  thus  demonstrating  that 
more  can  be  had  in  the  matter  of  results  through  the  elimina- 
tion of  competition  than  through  the  compulsory  fomenting 
of  it.  Administrative  supervision  such  as  is  exercised  over 
railroads  by  the  Interstate  Commerce  Commission,  over  the 
banks  by  the  Comptroller  of  the  Currency,  and  over  indus- 
trial concerns  by  the  Federal  Trade  Commission  is  much 
more  flexible  and  in  the  long  run  more  salutary  from  the 


262      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  extent 
to  which 
the  states 
may 
restrain 
commerce. 


Police 
power  in 
its  relation 
to  inter- 
state trade. 


The 

Original 
Package 
Decision 
(1890). 


public  point  of  view  than  the  sweeping  prohibitions  of 
the  law  can  ever  hope  to  be. 

These,  in  brief,  are  the  powers  and  instrumentalities  of 
the  national  government  with  respect  to  commerce.  Lest  a 
misleading  impression  has  been  given  let  it  be  repeated, 
however,  that  federal  jurisdiction  in  many  of  these  matters 
is  not  exclusive ;  the  several  states  have  some  powers  even 
with  respect  to  foreign  and  interstate  commerce.  The 
constitution  expressly  permits  a  state  to  lay  duties  on  imports 
or  exports  whenever  such  "may  be  absolutely  necessary  for 
executing  its  inspection  laws, "  but  it  may  not  use  this  power 
as  a  means  of  obtaining  revenue.  Moreover,  the  Supreme 
Court  has  consistently  upheld  the  doctrine  that  reasonable 
state  laws  for  the  protection  of  the  public  safety,  health, 
and  morals,  even  when  they  operate  to  restrain  interstate 
commerce,  are  valid.  Thus  a  state  may  establish  its  own 
quarantine,  may  prohibit  the  operation  of  freight  trains  on 
Sundays,  may  regulate  the  maximum  speed  of  trains,  and 
so  on,  even  though  such  regulations  interfere  with  carriers 
engaged  in  interstate  commerce.  The  state  regulations 
must  be  reasonably  designed  to  protect  its  own  citizens 
and  no  more;  they  cannot  interfere  with  interstate  com- 
merce on  any  other  ground. 

There  is,  accordingly,  a  margin  for  conflict  between  two 
spheres  of  authority,  the  commerce  power  of  Congress  and 
the  police  power  of  the  states.  This  was  well  illustrated  in 
the  so-termed  Original  Package  Case.  Various  states 
have  laws  forbidding  the  manufacture  or  sale  of  intoxicating 
liquors  within  their  own  borders,  Maine,  Kansas,  and  Vir- 
ginia, for  example.  Do  these  prohibitory  laws  operate  to 
prevent  the  importation  of  liquor  from  other  states  and  its 
sale  within  the  prohibition  area?  Many  years  ago  the 
Supreme  Court  in  a  well-known  decision  which  passed  into 
popular  parlance  as  the  Original  Package  ruling  held  that 
the  prohibitory  laws  of  states  cannot  ordinarily  interfere 
with  the  importation  and  sale  of  any  merchandise  so  long 
as  the  commodity  remained  in  the  unbroken  package  in 
which  it  was  delivered  for  transportation  into  the  state  from 
a  point  outside.1  The  court  did  not  lay  this  down  as  an 
1  Leisy  vs.  Hardin  (135  U.  S.  100),  1890. 


THE  POWER  TO  REGULATE  COMMERCE  263 

absolute  rule  but  as  a  general  principle  to  be  followed  when- 
ever special  circumstances  did  not  seem  to  require  a 
departure  from  it.  This  decision  established  the  doctrine 
that  in  the  absence  of  permission  from  Congress  the  states 
cannot  ordinarily  prohibit  unbroken  importations  from 
abroad  or  from  another  state. 

Congress,  however,  soon  cleared  up  this  difficulty  so  far 
as  the  importation  and  sale  of  liquors  is  concerned.     Im- 
mediately after  this  decision  it  passed  the  WilsojL-Act  of  The  Wilson 
1890,  which  provided  that  all  intoxicating  liquors  brought  Act' 
into  any  state  should  be  subject  to  the  state  laws  as  regards 
their  sale  even  in  original  packages,  and  in  JL913  it  went  still! 
further  by  forbidding  altogether  the  importation  of  liquors  | 
into    states   which   have   laws   against   importation.     The 
" original  package"  doctrine  still  holds  in  a  general  way  as 
regards  tobacco  and  other  articles  of   general  trade,    but 
there  are  great  practical  difficulties  in  applying  it  and  it  is 
not  always  implicitly  followed. 

The  regulating  power  of  Congress  over  foreign  and  inter- 
state commerce,  therefore,  while  paramount  whenever  exer- 
cised, is  not  exclusive.     When  a  state,  for  example,  makes 
laws  for  the  sanitary  protection  of  its  harbors,  these  laws/ 
apply  to  foreign  merchant  vessels  in  port,  and  if  they  are  not/ 
in  conflict  with  laws  made  by  Congress  they  are  held  toll 
represent  a  reasonable  exercise  of  the  state's  police  power.i/ 
What  the  constitution  requires  is  that  the  states  shall  not  set 
out  to  determine  the  course  of  commerce  and  that  they  shall 
not,  under  color  of  their  police  power,  undertake  to  raise 
revenues  from  any  form  of  commerce  which  is  not  wholly 
carried  on  within  their  own  boundaries.     Within  this  latter 
sphere  the  states  may  tax,  license,  regulate,  or  even  prohibit 
as  they  see  fit,  provided  they  do  not  deprive  any  one  of  his 
property  without  due  process  of  law  or  deny  to  any  one  the 
equal  protection  of  the  laws. 

1  "The  fact  that  state  regulations  adopted  in  the  exercise  of  the  general 
police  power  may  incidentally  affect  foreign  commerce  does  not  render  such 
state  regulations  necessarily  invalid.  If  they  are  not  unreasonable,  nor 
calculated  to  effect  a  discrimination,  and  do  not  in  substance  amount  to 
general  regulations  of  such  commerce  as  is  placed  within  the  control  of 
Congress,  they  will  be  upheld."  Emlin  McClain,  Constitutional  Law  in 
the  United  States  (2d  ed.,  N.  Y.,  1913),  p.  153, 


264      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Federal 
taxation 
of  corpo- 
rations. 


Proposed 
federal 
incorpora- 
tion. 


Since  1909  all  corporations  doing  business  in  the  United 
States,  even  when  such  business  is  wholly  within  a  single 
state,  have  been  subject  to  a  federal  corporation  tax.1 
The  levy  of  this  tax  has  been  upheld,  not  as  a  regulation  of 
commerce,  but  as  an  excise  laid  upon  the  privilege  of  doing 
business  under  a  corporate  form  of  organization.  As  a 
means  of  assessing  the  tax,  every  corporation  is  required 
to  make  to  the  national  government  an  annual  report 
disclosing  its  earnings  and  expenses,  so  that  the  weapon  of 
publicity  as  a  means  of  corporate  regulation  is  now  in  the 
government's  hands. 

But  although  business  corporations  pay  federal  taxes 
and  make  an  annual  report  to  the  national  authorities, 
nearly  all  of  them  are  operating  under  powers  conferred 
by  the  states.  In  other  words,  nearly  all  have  state  charters. 
Congress  undoubtedly  has  authority  to  charter  corporations 
provided  they  are  to  engage  in  foreign  or  interstate  commerce 
and  at  times  has  exercised  this  authority,  but  not  to  any 
large  extent.  It  has  frequently  been  proposed,  however, 
that  the  national  government  should  require  all  concerns 
engaged  in  such  commerce  to  take  out  national  charters, 
so  that  the  charters  of  all  corporations  might  be  made  uni- 
form and  federal  control  rendered  more  effective.  Another 
suggestion  is  that  while  leaving  the  states  to  provide  cor- 
porations of  all  kinds  with  their  charters,  the  national  govern- 
ment might  prescribe  a  federal  license  for  all  those  desiring 
to  carry  on  foreign  or  interstate  commerce,  thus  providing 
itself  with  a  strict  and  effective  regulatory  power  through  the 
possibility  of  revoking  a  license  at  any  time.  Thus  far, 
however,  nothing  tangible  has  been  brought  to  pass  along 
either  of  these  lines. 

1  Provided  their  net  earnings  are  more  than  a  designated  amount. 


• 


CHAPTER  XVIII 

THE   WAR  POWERS 

"  SECURITY  against  foreign  danger  is  one  of  the  primitive  Scope  of 
objects  of  civil  society.  It  is  an  avowed  and  essential 
object  of  the  American  Union.  The  power  requisite  for 
attaining  it  must  be  effectually  confided  to  the  federal 
councils."  That,  in  the  words  of  Madison,  is  the  reason 
why  war  powers  of  practically  unlimited  extent  are  conferred 
upon  the  national  government  by  the  constitution.  Seven 
specific  grants  of  war  power  to  Congress  appear  in  that 
document,  namely ,{- to  declare  war,  ^tb  raise  and  support 
armies,  to  provide  and  maintain  a  navy /  to  make  rules  for 
the  government  of  the  land  and  naval  forces,  to  provide 
for  calling  forth  the  militia  to  execute  the  laws  of  the  nation, 
.  to  provide  for  organizing,  arming,  and  disciplining  the  militia, 
A  ^nd  to  exercise  exclusive  legislation  over  places  acquired 
v  for  forts,  magazines,  arsenals,  dockyards,  and  other  needful 
buildings.  Among  the  eighteen  clauses  of  .the  constitution 
which  enumerate  the  powers  of  Congress,  therefore,  more 
than  one-third  deal  with  the  various  branches  of  military 
and  naval  authority.1 

1  The  exact  wording  of  these  various  clauses  is  as  follows  :  "To  declare 
war,  grant  letters  of  marque  and  reprisal,  and  make  rules  concerning  cap- 
tures on  land  and  water." 

"To  raise  and  support  armies,  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years." 

"To  provide  and  maintain  a  navy." 

"To  make  rules  for  the  government  and  regulation  of  the  land  and  naval 
forces." 

"To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions." 

"To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and 
for  governing  such  part  of  them  as  may  be  employed  in  the  service  of  the 
United  States,  reserving  to  the  States  respectively  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  Congress." 

265 


266      THE  GOVERNMENT  OF  THE  UNITED  STATES 


1.   The 
power  to 
declare 
war. 


2.   The 
power  "to 
raise  and 
support 
armies." 


The  regular 
army. 


Congress  alone  can  declare  war,  but  a  formal  declara- 
tion is  not  an  essential  preliminary  to  the  outbreak  of  hos- 
tilities. Such  declarations  are  customary  among  nations, 
but  no  rule  of  international  law  requires  their  issue.  Dec- 
larations of  war  are  not  issued  primarily  for  the  benefit 
of  the  adversary  but  for  the  information  of  neutrals  so  that 
they  may  observe  the  strict  rules  of  neutrality  and  keep 
out  of  the  way.  Not  infrequently  a  declaration  of  war  is 
issued  after  the  hostilities  hav,e  actually  begun,  as,  for 
example,  in  the  Spanish-American  War  of  1898.  When 
Congress  does  act,  however,  a  declaration  of  war  is  usually 
embodied  in  a  resolution  passed  in  both  Houses  and  signed 
by  the  President.  This  resolution  recites  the  reasons  for 
the  resort  to  arms  and  ends  by  declaring  that  a  state  of  war 
exists. 

The  power  "to  raise  and  support  armies"  is  vested  in 
Congress  without  any  limitation  save  that  no  appropriation 
Jof  money  for  this  purpose  shall  be  made  for  a  longer  term 
{than  two  years.  In  other  words  no  Congress  may  commit 
succeeding  Congresses  to  a  programme  of  military  expendi- 
tures. In  all  other  respects,  whether  as  to  the  size  of  the 
army,  the  method  of  recruiting  it,  or  the  measures  necessary 
for  supporting  it,  Congress  has  unlimited  discretion.  This 
wide  latitude  was  wisely  given  because  no  one  could  foresee 
the  dangers  with  which  the  Union  might  some  day  be  con- 
fronted, but  it  was  assumed  that  no  standing  army  of  any 
considerable  size  would  ordinarily  be  required. 

During  Washington's  two  terms  as  President  the  army 
of  the  United  States  (as  distinct  from  the  militia  of  the 
states),  never  exceeded  five  thousand  of  all  ranks.  But 
even  this  was  regarded  by  the  anti-Federalists  as  too  large, 
and  in  1798  the  legislature  of  Virginia,  under  the  inspira- 
tion of  Jefferson  and  Madison,  voted  that  "our  security 
from  invasion  and  the  strength  of  our  militia  render  a  stand- 
ing army  unnecessary."  The  danger  of  a  war  with  Napo- 
leonic France,  however,  soon  led  to  a  temporary  increase  in 
the  size  of  the  regular  forces.  During  the  War  of  1812 
Congress  authorized  the  raising  of  about  thirty-five  thousand 
men  by  enlistment  in  the  army,  but  men  did  not  enlist  readily 
and  the  war  was  fought  chiefly  by  the  militia  called  into  the 


THE  WAR  POWERS  267 

national  service.  After  peace  had  been  made  in  1815  the 
regular  army  again  dropped  in  numbers  and  was  not  again 
substantially  increased  until  a  few  years  prior  to  the  War 
with  Mexico.  Even  in  the  Civil  War  the  strength  of  the  The 
regular  army  was  not  raised  to  any  formidable  proportions. 
By  far  the  greater  portion  of  the  fighting  forces  were  obtained 
by  calling  out  the  militia  of  the  several  states  and  by  en- 
couraging volunteer  organizations.  After  the  war  the 
maximum  size  of  the  regular  army  was  fixed  at  twenty-five 
thousand,  a  figure  which  was  raised  to  sixty-one  thousand 
for  the  Spanish  War  in  1898.  Thereafter  it  continued  to 
range  between  sixty  and  one  hundred  thousand  until  after 
the  outbreak  of  hostilities  in  Europe  when  comprehensive 
measures  for  its  further  increase  were  taken.  The  regular 
army  has  always  been  recruited  by  voluntary  enlistment. 
It  has  never  contained  any  units  raised  by  conscription. 
It  is,  as  its  name  implies,  a  permanent  establishment,  com- 
posed of  trained  officers  and  men  who  give  their  entire 
time  to  the  service.1 

Although  the  regular  army,  upon  the  participation  of  The 
the  United  States  in  the  European  War,  was  recruited  by 
enlistment  to  the  highest  figure  in  its  history,  and  although 
the  organized  militia  of  the  various  states  was  called  into 
the  federal  service,  the  bulk  of  the  expeditionary  forces  were 
raised  by  the  application  of  the  so-termed  Selective  Service 
Law,  passed  by  Congress  in  1917. 2  This  act,  with  its 
amendments,  provided  at  first  for  the  selective  conscription  of 
male  citizens  between  the  ages  of  twenty-one  and  thirty-one 
and  later  for  an  extension  to  include  all  between  the  ages  of 
eighteen  and  forty-five.  A  registration  of  all  such  persons  was 
ordered  and  the  first  increment  of  the  new  army  was  drawn 
from  the  lists  by  lot  after  a  due  apportionment  of  the  re- 
quired number  had  been  made  among  the  states.  For  subse- 
quent increments,  however,  all  registrants  were  divided  ac- 
cording to  their  circumstances  into  various  classes,  the 
first  class  including  physically  fit  persons  without  dependents, 

1  By  the  provisions  of  the  National  Defence  Act  of  1916  the  authorized 
strength  of  the  Regular  Army  of  the  United  States  was  fixed  at  about 
133,000  of  all  ranks. 

2  Approved  by  the  President,  May  18, 1917 ;  amended  August  30, 1918, 


268      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Scope  of 
the  power 
"to  sup- 
port 
armies." 


Control 
of  the 
food  and 
fuel 
supply. 


Operation 
of  the 
railroads. 

The  ship- 
building 
program. 


not  engaged  in  necessary  war  work  or  in  essential  employ- 
ments. Selections  were  then  made  wholly  from  the  first 
class.  The  entire  work  of  selecting  men  for  the  army  was 
performed  under  the  supervision  of  the  provost-marshal- 
general,  an  official  of  the  War  Department,  assisted  by 
civilian  boards  in  all  parts  of  the  country. 

The  power  "to  raise  and  support  armies"  gives  to  Con- 
gress in  war  time  an  authority  over  every  branch  of  national 
life  which  is  well-nigh  unlimited.  The  events  of  recent 
years  have  shown  this  impressively.  When  an  army  is 
in  training  or  in  the  field  every  branch  of  commerce  or 
industry,  even  the  home  life  and  habits  of  the  people,  may 
be  placed  under  any  necessary  restraint  to  facilitate  its 
"support."  It  was  by  virtue  of  this  authority  that  Con- 
gress empowered  the  President  to  establish  systems  of 
food  and  fuel  administration  with  power  to  regulate  supply 
and  to  control  consumption.  It  is  by  virtue  of  this  authority 
"to  support  armies"  that  the  compulsory  shutting  down 
of  industries  for  short  periods  was  decreed.  The  taking- 
over  of  the  railroads  likewise  came  within  the  scope  of  this 
power.  That  action  may  also  be  within  the  power  which 
Congress  possesses  to  regulate  commerce;  but  there  was 
no  need  to  have  recourse  to  that  interpretation.  The  war 
authority  is  broad  enough  to  cover  it.  The  huge  ship- 
building program  upon  which  the  nation  embarked  in  1917 
is  also  within  the  same  category.  In  time  of  peace  the 
commerce  clause  might  be  invoked  to  validate  the  construc- 
tion, ownership,  and  operation  of  merchant  vessels  by  the 
national  government,  although  it  is  not  certain  that  it 
could  be  invoked  successfully.  But  so  long  as  the  nation  is 
at  war  there  appears  to  be  very  little,  if  anything,  in  the 
way  of  construction,  conservation,  or  regulation  that  Con- 
gress cannot  command.  The  last  ounce  of  national  energy 
may  be  necessary  to  support  military  operations  ;  if  so,  Con- 
gress may  call  for  it.  This  is  as  it  ought  to  be.  The  framers 
of  the  constitution  acted  with  great  foresight  when  they 
set  no  shackles  upon  the  national  government  in  time  of 
war. 

Power  "to  provide  and  maintain  a  navy"  is  also  given 
to  Congress,  in  this  case  without  any  restriction  as  to 


THE  WAR  POWERS  269 

the  period  for  which  appropriations  may  be  made.  The  3.  The 
naval  authority  includes  the  right  of  Congress  to  make  ^pro- 
rules  for  the  general  administration  of  the  sea  forces,  includ-  vide  and 
ing  the  organization  of  the  navy  department  and  its  various 
technical  bureaus.  It  also  authorizes  the  voting  of  money 
for  the  construction  of  vessels,  the  determination  of  the 
type  of  ships  to  be  built,  the  provision  of  navy-yards  and 
repair  depots,  and  the  entire  general  direction  of  the  nation's 
naval  policy.  While  the  immediate  direction  of  the  navy 
is  in  the  hands  of  the  President  as  its  commander-in-chief, 
acting  through  the  Secretary  of  the  Navy,  the  organization 
and  general  policy  are  both  within  the  jurisdiction  of  Con- 
gress. 

Five  years  after  the  establishment  of  the  national  gov-  History  of 
ernment  Congress  provided  for  the  construction  of  six  thenavy- 
frigates,  which  became  the  nucleus  of  the  United  States 
navy.  A  few  years  later  a  separate  Department  of  the 
Navy  was  created,  naval  affairs  having  been  theretofore 
under  the  control  of  the  War  Department.  Some  impetus 
to  naval  construction  was  given  by  the  War  of  1812,  but 
from  the  close  of  this  war  until  1861  the  armed  sea  forces 
of  the  government  received  astonishingly  little  attention. 
A  large  naval  establishment  was  built  up  during  the  Civil 
War,  but  it  was  allowed  to  disintegrate  when  the  struggle 
was  over.  The  navy  of  to-day  began  its  real  development 
about  1885,  when  a  complete  reorganization  of  the  depart- 
ment took  place ;  but  it  received  new  impetus  during  and 
immediately  after  the  War  with  Spain  in  1898.  At  the 
outbreak  of  the  European  War  the  navy  of  the  United  States 
ranked  third  among  the  fleets  of  the  world. 

The  authority  to  "make  rules  for  the  government  and  4.  The 
regulation  of  the  land  and  naval  forces"  is  also  devolved  P°Yert° 

~  .         .  rr,.  make  rules 

upon    Congress    by   the    constitution.      1  he    general    rules  for  the  land 
for  the  government  of  the  land  forces  are  contained  in  the 
Articles  of  War.     On  the  outbreak  of  the  Revolutionary 
War  in  1775  the  Continental  Congress  adopted  with  some  The 
changes  the  code  of  military  rules  which  governed  the  Eng- 
lish  army  at  that  time.     These  were  continued  in  force, 
with  some  further  modifications,  by  resolution  of  the  first 
Congress  of  the  United  States  in  1789,  and  by  successive 


270      THE  GOVERNMENT  OF  THE  UNITED  STATES 

enactments  thereafter  until  1806,  when  they  were  revised 
and  somewhat  altered.  Although  further  amendments 
were  made,  particularly  during  the  Civil  War,  the  Articles 
remained  without  great  changes  until  1912  when  another 
general  revision  took  place  with  numerous  alterations.1 
The  navy  is  also  governed  by  a  general  code  of  regulations 
which  Congress  has  enacted. 

Military  These  codes  of  rules,  enacted  by  Congress  for  the  govern- 

whatit         ment  of  the  land  and  naval  forces,  make  up  that  branch 

implies.         of  jurisprudence  which   is   commonly   known   as   military 

law.     It  should  be  clearly  distinguished  from  martial  law. 

Military  law  applies  only  to  persons  who  are  in  the  military 

or  naval  service.     Martial  law  is  a  term  used  to  designate 

the  government  of  any  territory  when  the  ordinary  civil 

administration  is  superseded  by  the  military  authorities. 

Distin-         When  martial  law  is  proclaimed  the  ordinary  laws  and  courts 

gmshed        are  no  ionger  paramount :  the  military  authorities  prescribe 

martial         the  rules  and  administer  them  for  the  time  being.     Martial 

law'  law  applies  to  the  inhabitants  of  the  area  in  which  it  is 

proclaimed.     It   may,    but   does   not   necessarily,    include 

within  its  scope  the  members  of  the  armed  forces. 

Military  Military  law  establishes  many  rules  of  conduct  to  which 

mmt!£y        civilians  are  not  subject  but  which  are  regarded  as  essen- 

tribunais.      tial    for    the     proper     maintenance    of    discipline.      The 

enforcement  of  these  rules  of  military  law  is  not  intrusted 

to  the  ordinary  courts  but  to  special  tribunals  known  as 

courts  martial  composed  of  officers  named  for  the  purpose. 

Courts         There  are  three  types  of  courts  martial,  —  summary,  special, 

martial.        an(j  generaj      A  summary  court  martial  is  held  by  a  single 

'  officer  and    deals   with    minor   offences.     A   special   court 

^martial  consists  of  from  three  to  five  officers  and  has  a 

^broader  jurisdiction.     A  general  court  martial  is  made  up 

of  from  five  to  thirteen  officers  and  may  try  any  crime  or 

'offence  made  punishable  by  the  Articles  of  War.     Every 

special  or  general  court  martial  is  assisted  by  a  legal  adviser 

known  as  a  judge-advocate,  who  prosecutes  the  case  in  the 

name  of  the  United  States,  examines  the  witnesses,  keeps 

a  record  of  the  proceedings,  and  is  the  legal  adviser  of  the 

court.     A  prisoner  on  trial  by  such  courts  martial  is  also 

1  The  latest  edition  is  the  Code  of  1916. 


THE  WAR  POWERS  271 

permitted  to  have  his  own  counsel.  Punishment  in  vary- 
ing degrees  up  to  and  including  the  death  penalty  may  be 
awarded ;  but  the  sentence  of  a  court  martial  must  always 
be  submitted  for  approval  or  disapproval  to  the  com- 
manding officer  by  whose  order  the  court  was  convened. 
In  certain  cases  the  approval  of  the  President  is  required 
before  the  sentence  of  a  court  martial  can  be  carried  into 
effect.1 

Martial  law  may  be  proclaimed  in  any  area  at  any  time  what 
by  Congress,  or  by  the  President  if  such  action  is  urgently 
required  before  action  by  Congress  can  be  had.  It  is  not 
proclaimed  except  in  case  of  invasion,  insurrection,  civil 
or  foreign  war,  and  then  only  in  districts  where  the  ordinary 
law  proves  itself  unable  to  secure  the  public  safety.  There 
are  no  prescribed  rules  of  martial  law.  The  orders  of  the 
officer  commanding  the  military  forces,  when  duly  promul- 
gated, are  to  be  obeyed  and  their  disobedience  may  be  sum- 
marily punished  by  the  military  authorities.  In  other 
words  martial  law  is  not  a  statutory  code  but  is  made  up  of 
the  day-to-day  regulations  which  are  rendered  necessary 
by  the  exigencies  of  military  occupation.  Special  military 
tribunals,  which  should  be  distinguished  from  courts  martial, 
are  established  to  administer  martial  law  if  necessary ;  but 
occasionally  the  existing  courts  are  retained.  Martial  law 
was  administered  on  an  extensive  scale  over  large  sections 
of  territory  during  the  Civil  War. 

While  the  establishment  of  martial  law  in  any  area  de-  Limita- 
prives  the  inhabitants  of  their  ordinary  civil  law  and  civil 
courts  it  does  not  of  itself  withdraw  from  them  the  con-  law. 
stitutional  rights  of  citizens.  Military  as  well  as  civil 
officials  are  bound  by  the  constitution  and  the  substitution 
of  martial  for  ordinary  law  does  not  change  the  relation  be- 
tween the  individual  and  the  nation.  The  privilege  of  the 
writ  of  habeas  corpus  is  not  suspended  by  the  mere  proclama- 
tion^of  martial  law.  This  suspension  must  be  specifically 
made  and  in  a  strictly  legal  sense  it  can  only  be  made  by 
Congress  although  the  suspension  was  ordered  during  the 

1  The  details  are  too  numerous  to  be  given  here.  They  may  be  found 
in  the  Manual  for  Courts- Martial  (Washington,  1917,  War  Dept.  Doc. 
No.  560),  par.  378.  See  also  G.  Glenn,  The  Army  and  the  Law  (N.Y.,  1918). 


272      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Military 
govern- 
ment. 


5.    The 

power 
to  call 
forth  the 
militia. 


Civil  War  by  the  President.  The  privilege  of  this  writ 
enables  any  one  held  in  custody  to  obtain  a  speedy  hearing 
before  a  regular  court ;  its  suspension  means  that  a  prisoner 
may  be  held  indefinitely  without  a  hearing.  The  constitu- 
tion requires,  accordingly,  that  this  privilege  be  not  sus- 
pended except  when  in  case  of  rebellion  or  invasion  the 
public  safety  demands  it. 

When  territory  is  conquered  and  held  by  an  invading 
force  it  is  usually  given,  for  the  time  being,  a  military  gov- 
ernment. This,  again,  should  be  distinguished  from  the 
administration  of  martial  law,  for  while  the  establishment 
of  military  government  involves  the  superseding  of  the  old 
sovereignty  it  does  not  usually  abrogate  the  existing  legal 
system.  A  military  government,  for  example,  was  estab- 
lished by  the  United  States  in  Porto  Rico  after  its  conquest 
from  Spain  in  1898,  and  remained  in  charge  of  the  island 
until  Congress  made  provision  for  a  civil  administration, 
but  martial  law  was  not  proclaimed,  nor  was  the  old  Spanish 
jurisprudence  at  once  abrogated. 

Military  law,  martial  law,  and  military  government,  accord- 
ingly, are  three  quite  different  things  although  they  are  often 
confused.  The  first,  which  applies  during  peace  as  well  as 
during  war,  includes  within  its  jurisdiction  only  members  of 
the  land  and  naval  forces.  It  is  the  system  of  law  which  the 
courts  martial  enforce.  The  second  replaces  the  ordinary  civil 
law  whenever,  either  in  peace  or  war,  the  ordinary  adminis- 
tration proves  inadequate  to  maintain  the  public  safety. 
It  applies  to  all  the  inhabitants  of  the  area  in  which  it  is 
proclaimed.  The  third,  military  government,  is  a  form  of 
rule  temporarily  set  up  in  conquered  or  occupied  territory. 

When  the  military  provisions  of  the  federal  constitution 
were  being  agreed  upon,  it  was  taken  for  granted  that  a 
well-regulated  militia  rather  than  a  standing  army  ought 
to  be  the  backbone  of  national  defence.  The  militia  of 
the  colonies  had  done  good  service  during  the  French  Wars 
and  a  large  part  of  the  Continental  Army  during  the  Revolu- 
tion had  been  created  by  the  mustering-in  of  militia  organiza- 
tions. The  dread  of  a  standing  army,  which  had  been  so  long 
a  bugbear  of  public  opinion  in  England,  was  quite  as  strong 
in  America,  hence  the  prominence  given  to  the  militia  in 


THE  WAR  POWERS  273 

1787  "as  the  only  substitute  that  can  be  devised  for  a  stand- 
ing army  and  the  best  possible  security  against  it."  1 

As  defined  by  the  national  laws  the  militia  includes  all  who  con- 
citizens  between  the  ages  of  eighteen  and  forty-five  and  this 
entire  force  is  legally  subject  to  the  call  of  the  President  to 
enforce  the  laws,  to  suppress  insurrection,  or  to  repel  inva- 
sion ;  but  in  actuality  only  a  small  portion  of  this  body  is 
regularly  organized  into  the  militia  or  National  Guard  of 
the  several  states. 

The   constitutional   status   of   the   militia   is   somewhat  Legal 
complicated,  and  widespread  misunderstanding  exists  con-  *£*$£ 
cerning  it.     The  militia,  as  such,  cannot  be  used  outside  militia, 
the   United   States.     The   constitution   allows   the   federal 
authorities  to  call  out  the  militia  for  three  purposes  only, 
"to  execute  the  laws  of  the  Union,  to  suppress  insurrections 
and  to  repel  invasions/7  none  of  which  operations  contem- 
plate service  on  foreign  soil.     Whenever  it  has  been  desired, 
therefore,  to  use  the  organized  militia  of  the  states  in  ser- 
vice outside  the  national  boundaries  the  practice  has  been 
to  organize  a  federal  volunteer  army  and  to  permit  the  trans- 
fer of  the  militia  to  this  branch  of  the  forces.     In  other 
words  the  militia  of  peace  times  has  become  a  volunteer  Muster- 
federal  army  in  war.     That  is  what  was  done  in  1898  and  JJJf^6 
again  in  1917.     All  members  of  militia  or  national  guard  into  the 
units  were  asked  to  enlist  in  the  federal  forces.     No  militia-  fedefal 

9  service* 

man  was  in  either  case  under  any  legal  compulsion  to  do  so  ; 
but  nearly  all  proved  willing.  This  "federalizing"  of  the 
militia  units  takes  them  wholly  out  of  state  jurisdiction  and 
places  them  on  exactly  the  same  footing  as  the  other 
national  forces. 

During  periods  when  the  militia  are  not  in  the  service  6.  The 
of  the  nation  the  constitution  provides  for  a  division  of  juris-  ^o Control 
diction.     Congress  has  power  to  provide  for  the  "  organizing,  the  organ- 
arming,  and  disciplining"  of  the  militia,  but  "the  appoint- 
ment  of  officers  and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed  by   Congress"   are 
matters  which  are  expressly  reserved  to  the  states.     The  militia 
reasons  for  this  separation  of  functions  are  to  be  found  in 
the  public  sentiment  of  the  post-Revolutionary  era.     The 
1  The  Federalist,  No.  29. 


274      THE  GOVERNMENT  OF  THE  UNITED  STATES 

states  were  jealous  of  their  military  privileges  and  would 
not  have  tolerated  a  complete  extinction  of  their  rights  in 
this  field.  On  the  other  hand  it  was  obvious  that  if  each 
state  was  left  entirely  to  itself  in  the  matter  of  organizing, 
arming  and  drilling  its  militia  the  country  would  never  be 
able,  in  time  of  emergency,  to  call  forth  a  homogeneous 
army.  Accordingly  the  national  government  was  given 
such  authority,  and  only  such  authority,  as  would  suffice 
to  secure  the  necessary  uniformity  in  the  militia  systems 
of  the  several  states,  while  the  states  themselves  were  allowed 
to  retain  the  reins  of  direct  control,  including  the  appoint- 
ment of  all  militia  officers.  This  latter  right  was  the  one 
upon  which  the  states  laid  the  greatest  emphasis. 
The  As  early  as  1792  Congress  passed  the  first  act  for  "or- 

ofThis6  ganizing,  arming,  and  disciplining"  the  militia,  and  this 
control.  statute  "continued  in  effect  without  very  material  changes 
until  1903,  although  the  various  wars  of  the  nineteenth 
century  showed  that  most  of  its  provisions  were  absurdly 
inadequate.  In  this  year  a  general  measure  for  the  improve- 
ment of  the  militia  was  passed  by  Congress.  Provision 
was  made  for  supplying  all  militia  units  with  the  same  uni- 
forms and  equipment,  also  for  their  instruction  by  officers 
of  the  regular  army  and  for  a  periodic  inspection  in  the 
interests  of  efficiency.  An  important  stipulation  of  this 
act  was  that  militia  units  might  be  mustered  into  the  federal 
service  in  time  of  war  by  a  procedure  therein  set  forth.  A 
few  years  later  (1908)  Congress  provided  for  the  distribution 
to  the  states  of  an  annual  grant  to  assist  them  in  the  main- 
tenance of  their  militia,  and  in  1916  various  other  changes 
were  made,  chiefly  in  the  direction  of  accentuating  the 
federal  government's  control.1 

While  the  division  of  military  authority,  as  provided  for 

1  These  provisions  were  embodied  in  the  National  Defence  Act  (ap- 
proved, June  3,  1916).  The  numbers  of  the  National  Guard  were  fixed 
in  each  state  at  200  rank  and  file  for  each  of  its  senators  and  representa- 
tives in  Congress,  with  a  provision  that  in  each  succeeding  year  this  number 
is  to  be  increased  by  50  per  cent  until  a  total  peace  strength  of  800  for 
each  senator  and  representative  is  reached.  Various  provisions  relating 
to  the  disciplining  of  the  state  militia,  the  qualifications  and  pay  of  officers 
and  men,  and  as  to  closer  federal  supervision  were  also  included.  For  a 
summary  of  this  legislation,  see  the  American  Year  Book  (1916),  pp.  301- 
315. 


THE  WAR  POWERS  275 

in  the  constitution,  was  a  necessary  concession  to  the  states  Weakness 
and  could  not  have  been  avoided,  its  practical  workings  ^^ 
have  been  at  all  times  far  from  satisfactory.  The  federal  provisions, 
government  makes  the  rules  of  organization  and  discipline, 
but  so  long  as  these  rules  are  carried  out  by  officers  whom 
the  states  appoint  the  hands  of  the  War  Department  are 
benumbed.  In  many  of  the  states  the  appointment  of 
militia  officers  has  been  largely  a  matter  of  personal  and 
political  favoritism,  with  little  regard  for  the  military 
capacity  or  experience  of  the  persons  appointed.  The 
annual  training  of  the  militia,  extending  over  a  few  days 
only,  has  too  often  been  the  occasion  of  large  expenditures 
without  any  substantial  results.  The  militia  of  the  United 
States  will  not  be  an  effective  force  until  its  entire  control, 
whether  in  peace  or  war,  passes  into  the  hands  of  the  federal 
government.1 

When  the  militia  of  the  states  was  called  out  by  the  Home 
national  government  in  August,  1917,  the  requirements  of  |[^jrds 
defence  at  home  were  met  by  the  organization  of  a  federal  similar 
force  known  as  the  United  States  Guard  and  of  local  forces, 
commonly  known  as  home  guards  or  state  guards.     The 
United  States    Guard  was  under  federal  jurisdiction,  but 
the  state  or  home  guards  were  wholly  under  state  control. 
The   rules    concerning    organization,  equipment,  and    dis- 
cipline, the  appointment  of  officers,  and  the  methods  of 
training  for  state  guards  were  established  by  the  legislature 
of  each  state.     The  cost  of  maintaining  such  organizations 
was  also  borne  entirely  by  the  states. 

In  various  parts  of  the  country  the  national  government/  7.  Powers 
has  acquired  land  for  the  construction  of  navy-yards,  forts|  °^ 
arsenals,  and  other  military  or  naval  works.     Over  such1  arsenals, 
property,  the  constitution  provides,  Congress  may  exercise  etc- 
"exclusive  legislation";    in  other  words,    Congress   alone 
may  make  laws  relating  to  such  areas.     The  military  and 
naval  works  of  the  United  States  are  not  subject  to  taxa- 
tion by  the  states  in  which  they  happen  to  be  located,  nor 

1  In  1918  all  outward  marks  of  distinction  between  members  of  the 
Regular  Army,  the  federalized  Militia  of  the  States  and  the  National 
Army  were  abolished  for  the  duration  of  the  War.  This  action,  however, 
did  not  abolish  distinctions  made  between  these  various  organizations  in 
the  constitution  or  the  laws. 


276      THE  GOVERNMENT  OF  THE  UNITED  STATES 

may  the  states  apply  to  them  any  restrictions  inconsistent 
with  a  proper  fulfilment  of  the  purposes  for  which  such 
works  are  constructed.  They  are  to  all  intents  and  purposes 
federal  areas,  outside  the  legislative  jurisdiction  of  the 
states.  No  property  may  be  acquired  by  the  national  gov- 
ernment in  any  state  for  military  or  naval  purposes,  how- 
ever, without  the  consent  of  the  state  legislature. 
Conclusion.  On  the  whole  the  war  powers  of  Congress  have  proved 
ample.  If  demonstration  of  this  fact  were  needed  it  has 
been  forthcoming  within  the  last  couple  of  years.  The 
relative  slowness  with  which  the  United  States  has  been 
able  to  put  forth  its  whole  military  strength  cannot  be  laid 
at  the  door  of  inadequate  constitutional  powers.  The  in- 
action of  Congress  in  making  preparations  and  the  apathy 
of  public  opinion  have  been  the  real  causes.  When  Congress 
decided  to  act  the  power  was  there. 


CHAPTER  XIX 

MISCELLANEOUS  POWERS  OF  CONGRESS 

OF  the  great  powers  granted  to  Congress  by  the  eighteen 
endowment  clauses  of  the  national  constitution  the  four 
most  important  have  been  discussed  in  the  immediately 
preceding  chapters.  The  others  must  have  less  extended 
consideration,  not  because  they  are  of  little  importance 
(for  some  of  them  are  of  large  consequence),  but  because 
the  limits  of  space  preclude  any  attempt  to  trace  the  rami- 
fications of  them  all.  Nor  is  a  knowledge  of  these  powers 
in  detail  necessary  to  a  reasonably  clear  grasp  of  the  main 
principles.  A  statement  of  these  remaining  powers,  with 
a  few  comments  upon  the  scope  of  each,  must  therefore 
suffice. 

Congress  has  power  to  establish  uniform  rules  upon  two  Naturaii- 
subjects,  naturalization  and  bankruptcy.  The  procedure  bankruptcy, 
in  naturalization  has  been  already  explained.  Over  the 
rules  as  to  citizenship  Congress  has  complete  and  exclusive 
jurisdiction,  having  fully  covered  the  matter  by  law.  As 
regards  bankruptcy  laws,  or  laws  which  provide  for  the 
distribution  of  a  debtor's  assets  among  his  creditors  after 
he  becomes  insolvent,  Congress  has  not  assumed  jurisdic- 
tion to  the  exclusion  of  the  states,  but  where  any  state 
law  conflicts  with  a  provision  of  the  National  Bankruptcy 
Act,  the  former  becomes  inoperative.  The  present  national 
law  provides  for  both,  voluntary  and  involuntary  petitions 
in  bankruptcy.  In  the  former  cases  the  insolvent  himself 
files  a  petition  in  a  federal  district  court  and  officials  are 
appointed  by  the  court  or  elected  by  his  creditors  to  take 
over  his  assets ;  in  the  case  of  involuntary  petitions  the 
application  is  made  by  one  or  more  of  the  insolvent's  credi- 
tors. After  the  assets  have  been  liquidated  the  insolvent 

277 


278      THE  GOVERNMENT  OF  THE  UNITED  STATES 

may  under  certain  conditions  obtain  from  the  court  a  dis- 
charge from  bankruptcy  which  relieves  him  of  further  legal 
liability  with  respect  to  all  debts  unpaid  at  the  time  of 
filing  the  petition.  For  the  security  of  interstate  trade  on 
credit  it  is  obviously  desirable  that  the  rules  relating  to 
bankruptcy  should  be  uniform  throughout  the  country. 
Coinage  Congress,  again,  is  given  power  by  the  constitution  to 

cun-ency.  co^n  monev  and  to  fix  the  standard  of  weights  and  measures. 
The  power  to  coin  money  belongs  to  the  federal  government 
alone ;  it  is  prohibited  to  the  states.  Immediately  after 
the  formation  of  the  Union  a  mint  was  established  at  Phila- 
delphia (1792)  and  other  establishments  for  minting  coin 
have  since  been  provided  for  in  other  cities.1  Provision 
was  also  made  for  adopting  the  decimal  system,  with  eagles, 
dollars,  dimes,  and  cents  as  the  chief  units.  The  ratio  of 
silver  to  gold  was  fixed  at  fifteen  to  one,  that  is  to  say  the 
weight  of  the  silver  dollar  was  made  fifteen  times  that  of 
the  gold  dollar.2  But  changes  in  the  supply  of  the  two 
metals  and  in  their  market  value  made  it  necessary  to 
change  the  ratio  to  sixteen  to  one  in  1834.  This  ratio  con- 
tinued until  1873  when  the  coinage  laws  were  entirely  revised 
and  the  minting  of  silver  dollars  discontinued.  Gold  alone 
now  became  the  standard  of  values.  The  country  passed 
from  a  bimetallic  to  a  gold  basis.  But  vigorous  opposition 
at  once  developed,  with  the  result  that  in  1875  Congress 
restored  the  silver  dollar  to  the  list  of  legal  tender  coins, 
and  in  1878  the  minting  of  silver  dollars  in  limited  quantities 
was  resumed.  This  policy  continued  until  1890,  when  an 
increase  in  the  coinage  of  silver  was  provided  for,  but  the 
continued  decline  in  the  market  price  of  that  metal  led 
to  the  complete  discontinuance  of  further  silver  purchases 
for  coinage. 

The  This  action  of  Congress  divided  the  two  great  political 

ovef10*         parties  on  the  issue  of  free  silver.     The  Democrats,  under 

bimetallism,  the  leadership  of  Mr.  Bryan,  fought  the  election  campaign 

of  1896  on  a  platform  which  demanded  the  free  and  unlimited 

1  There  are  four  mints  at  present,  namely  at  Philadelphia,  Denver,  San 
Francisco,  and  New  Orleans.     Assay  offices  have  been  established  at  nine 
other  places. 

2  Gold  dollars  were  actually  coined  during  the  period  1849-1889  only. 


MISCELLANEOUS  POWERS  OF  CONGRESS  279 

coinage  of  silver  dollars  at  a  ratio  of  sixteen  to  one.  The 
Republicans,  on  the  other  hand,  supported  the  mono- 
metallic or  single  gold  standard.  The  Republican  victory 
at  this  election  did  not  end  the  free  silver  agitation,  but  it 
virtually  insured  the  continuance  of  the  gold  basis,  and  the 
matter  was  definitely  settled  by  the  Gold  Standard  Act  of 
1900.  Into  the  economic  merits  of  this  famous  controversy 
it  is  not  necessary  to  proceed ;  but  the  question  bulked 
large  in  political  discussion  during  the  decade  1890-1900.1 
Silver  dollars  continue  in  circulation,  but  they  are  not  a 
basis  of  the  currency.  The  gold  dollar,  which  is  no  longer 
coined  at  all,  is  the  legal  standard  of  values  in  the  United 
States. 

Congress  is  not  given  any  express  authority  to  issue 
paper  money,  the  constitution  being  dumb  on  this  point, 
although  it  definitely  forbids  any  of  the  states  to  "emit 
bills  of  credit."  It  has  been  held,  however,  that  Congress 
may  not  only  issue  paper  money  as  an  incident  of  its  bor- 
rowing power,  but  may  make  such  notes  legal  tender  in 
payment  of  debts.  Treasury  notes  were  issued  during  the 
War  of  1812  and  during  the  Mexican  War,  but  not  until 
1862  did  Congress  designate  anything  except  gold  and  sil- 
ver coin  as  a  legal  tender.  In  that  year,  due  to  the  urgent 
needs  of  the  government  in  Civil  War  times,  a  larger  issue  The 
of  notes  than  ever  before  was  made,  and  in  order  to  float 
them  more  readily  these  so-called  "greenbacks"  were  issue. 
declared  to  be  a  legal  tender  for  all  payments  except  cus- 
toms duties  and  interest  on  government  bonds.  Other 
issues  followed  and  these  also  were  made  legal  tender.  It 
was  a  moot  question  whether  Congress  had  any  right  to 
make  this  paper  money  a  legal  tender,  but  the  Supreme 
Court  finally  decided  in  1871  that  this  authority  was  within 
the  jurisdiction  of  Congress  as  an  incident  to  its  power  to 
borrow  money.2 

When  the  Civil  War  was  over  there  was  a  clamor  from 
various  quarters  that  these  paper  notes  be  withdrawn  and 

1  J.  L.  Laughlin,  History  of  Bimetallism  in  the  United  States  (4th  ed., 
N.  Y.,  1900),  and  F.  W.  Taussig,  The  Silver  Situation  in  the  United  States 
(3d  ed.,  N.  Y.,  1898). 

2  The  Legal  Tender  Cases,  110  U.  S.  421. 


280      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 
green- 
back con- 
troversy, 
1866- 
1880. 


Present 
factors 
in  the 
currency. 


Weights 

and 

measures. 


that  specie  payments  be  resumed.  Various  difficulties 
stood  in  the  way  of  this  policy,  however,  and  the  contro- 
versy over  the  greenbacks  continued  for  a  decade.  One 
faction,  both  in  and  out  of  Congress,  sought  to  continue 
the  greenbacks  in  circulation  and  even  to  increase  them; 
the  other  sought  to  have  them  removed  from  circulation 
so  as  to  make  room  for  metallic  currency  and  national  bank 
notes.  The  organization  of  the  Greenback  Party  which 
figured  prominently  in  the  elections  of  1876  and  1878  was 
an  outcome  of  this  political  conflict.  Congress,  however, 
agreed  that  in  the  matter  of  returning  to  a  specie-payment 
basis  "the  way  to  resume  is  to  resume"  and  a  consider- 
able portion  of  the  notes  were  retired  by  virtue  of  an  act 
passed  in  1875.  The  remainder  are  still  in  circulation. 

The  present  currency  of  the  United  States  falls  into  at 
least  six  classes :  (l)  gold  coin,  minted  at  various  times 
in  denominations  from  one  to  twenty  dollars ;  (2)  silver 
dollars,  fractional  silver  (half-dollars,  quarters,  and  dimes), 
and  fractional  small  coins  (nickels  and  cents)  ;  (3)  gold 
and  silver  certificates  issued  against  deposits  of  gold  and 
silver  bullion  held  in  the  federal  treasury ;  (4)  United 
States  notes  or  "greenbacks,"  and  treasury  notes,  both  of 
which  are  redeemable  in  coin;  (5)  national  bank  notes, 
which  are  protected  by  deposits  of  government  bonds,  and 
(6)  federal  reserve  bank  notes  issued  against  the  security 
of  commercial  paper  deposited  by  subscribing  banks  for 
re-discount.  This  is  a  greater  variety  of  currency  than  one 
can  find  in  the  peace-basis  circulation  of  any  other  great 
country.  Yet  it  is  not  to  be  assumed  that  there  would  be 
any  great  advantage  in  reducing  it  all  to  the  same  type. 

The  entire  currency,  metallic  and  paper,  is  issued  under 
the  authority  of  Congress ;  no  state  can  either  coin  money 
or  "emit  bills  of  credit."  A  state  may  authorize  a  bank  to 
issue  paper  money,  but  as  such  notes  are  subject  to  a  heavy 
federal  tax  they  are  non-existent. 

In  the  matter  of  weights  and  measures  Congress  has 
full  determining  power.  Many  laws  were  put  upon  the 
statute  book  relating  to  this  subject  during  the  course 
of  the  nineteenth  century,  but  no  comprehensive  attempt 
was  made  to  deal  with  the  standardization  of  weights  and 


MISCELLANEOUS  POWERS  OF  CONGRESS  281 

measures  in  a  scientific  way  until  1901,  when  the  national 
Bureau  of  Standards  was  established  to  undertake  the  work 
of  securing  accuracy  and  uniformity.  This  bureau  now 
supplies  the  various  states  with  exact  standards.  The 
inspection  of  weights  and  measures,  on  a  basis  of  their 
conformity  to  these  standards,  is  in  the  hands  of  state  and 
municipal  authorities.  The  old  English  standards  (pound, 
yard,  gallon,  etc.,  and  their  derivatives),  somewhat  modified, 
are  generally  used ;  but  the  metric  system  was  also  made 
legal  by  Congress  more  than  fifty  years  ago  and  the  standards 
of  the  international  metric  system  are  supplied  to  all  the 
states. 

Congress  has  power  to  provide  for  the  punishment  of  The 
counterfeiting  either  the    money  or   the  securities  of   the 
United  States  or  those  of  foreign  countries,  but  this  does  counter- 
not  preclude  the  punishment  of  such  offences  by  state  laws  feitm«- 
as  well.     As  a  rule,  however,  these  offences  are  left  to  be1' 
dealt  with  by  the  federal  courts.     The  wilful  uttering    of 
counterfeit  money  or  notes,  apart  from  the  actual  counter- 
feiting, is  commonly  made  an  offence  by  state  law  and 
punished  by  the  state  courts. 

Then  there  is  the  postal  power,  or  as  the  constitution  The 
puts  it,  the  power  "to  establish  post-offices  and  post-roads. " 
"No  other  constitutional  grant,"  as  one  distinguished  writer 
has  remarked,  "  seems  to  be  clothed  in  words  which  so  poorly 
express  its  object  or  so  feebly  indicate  the  particular  meas- 
ures which  may  be  adopted  to  carry  out  its  design."  l  The 
reason,  perhaps,  is  that  the  framers  of  the  constitution  merely 
sought  to  perpetuate  in  central  hands  a  power  which  was 
already  there  and  which  in  its  actual  workings  was  well 
comprehended  by  everybody.  The  postal  system  of  the 
country  is  older  than  the  federal  government  itself,  extend- 
ing back  into  colonial  times.  In  the  interval  between  the 
outbreak  of  the  Revolution  and  the  adoption  of  the  constitu- 
tion it  was  first  in  charge  of  the  Continental  Congress  and 
later  by  the  Articles  of  Confederation  was  given  to  the  Con- 
gress established  by  that  agreement. 

By  virtue  of  its  postal  power  the  federal    government 

1  J.  N.  Pomeroy,  An  Introduction  to  the  Constitutional  Law  of  the  United 
States  (10th  ed.,  Boston,  1888),  Section  411. 


282      THE  GOVERNMENT  OF  THE  UNITED  STATES 

what  it  not  only  maintains  the  country's  elaborate  network  of  post- 
offices  and  delivery  routes  but  conducts  the  money-order 
service  and  the  postal  savings  bank  system.1  It  likewise 
exercises  a  considerable  degree  of  control  over  certain  lines 
of  business  by  virtue  of  its  power  to  refuse  the  use  of  the 
mails  to  any  concern  which  has  been  found  to  use  the  service 
"Fraud  fraudulently.  This  is  done  by  the  issue  of  "fraud  orders." 
orders."  The  right  to  deny  the  use  of  the  mails  represents  a  large 
power,  capable  of  wide  extension  and  indeed  with  possi- 
bilities of  serious  abuse.  Many  years  ago  the  Supreme 
Court  sustained  the  right  of  postal  authorities  to  exclude 
from  the  mails  any  matter  that  they  deem  objectionable,2 
and  also  declared  that  no  state  might  establish  a  postal 
system  in  competition  with  the  federal  government.  Con- 
gress may  likewise  delegate  to  the  Postmaster-General  the 
right  to  determine  what  matter  shall  be  so  excluded,  and 
this  delegated  authority  is  not  subject  to  review  by  the 
courts.  Decisions  of  the  Postmaster-General,  in  the  case 
of  fraud  orders,  are  final  and  conclusive.3  The  denial  of 
the  right  to  use  the  mails  is  not  a  deprivation  of  property, 
for  no  one  can  acquire  a  property  right  in  postal  facilities 
paramount  to  the  proper  handling  of  the  service.4 
HOW  far  The  power  to  establish  and  maintain  "  post-roads "  is 

does  the        an  authority  which  has  thus  far  been  used  but  slightly, 
power          yet  it  might  well  be  utilized  to  amplify  the  functions  of  the 
extend?        federal  government  in  an  enormous  degree.     The  original 
intention  may  have  been  to  vest  in  Congress  the  right  to 
build  and  maintain  roadways  if  that  should  be  necessary 
to  secure  the  carrying  of  mail  from  one  town  to  another. 
But  mails  are  not  now  for  the  most  part  carried  by  road ; 
they  are  handled  by  the  railways.     To  interpret  the  term 
"post-roads"    as    including    railways    involves    no  greater 
stretching  of  a  constitutional  phrase  than  that  which  the 

1  There  are  four  classes  of  post-offices,  ranged  according  to  their  gross 
annual  receipts.     All  postmasters  are  appointed  by  the  President,  but 
appointments   to  practically  all  post-offices  are  now  made  under  civil 
service  rules. 

2  Ex  parte  Jackson,  91  U.  S.  727. 

3  Public  Clearing  House  vs.  Coyne,  194  U.  S.  497. 

4  For  a  survey  of  the  postal  authority  in  its  legal  phases,  see  Lindsay 
Rogers,  The  Postal  Power  of  Congress  (Baltimore,  1916),  especially  ch.  vii. 


MISCELLANEOUS  POWERS  OF  CONGRESS  283 

Supreme  Court  has  so  freely  permitted  by  including  tele-  Does  the 
grams  and  telephone  messages  within  the  word  "  commerce."  -p^t! 
Although  the  nation  has  taken  over  the  operation  of  the  roads" 
railroads    as  a  war  measure,  Congress  has  not  committed 
itself  to  a  programme  of  government  ownership ;  but  if  it 
should  ever  do  so  this  post-road  provision  would  in  all  like- 
lihood be  construed  as  sufficient  to  warrant  such  action. 

In  his  message  vetoing  the  Cumberland  Road  bill  in  The 
1822  President  Monroe  asserted  that  Congress  had  no  power 
under  the  constitution  to  embark  upon  a  policy  of  highway  answer, 
construction  by  virtue  of  its  postal  authority,  but  that  the 
postal  service  must  use  the  existing  roads  provided  by  the 
states.  That  doctrine,  however,  has  long  since  become 
unorthodox.  The  power  of  Congress  to  construct  not 
only  roads  but  railways  across  either  territories  or  states 
has  been  upheld  by  the  Supreme  Court  to  be  implied  not 
only  in  the  " post-roads"  clause  of  the  constitution  but 
also  in  the  authority  to  regulate  commerce.1 

Again,  Congress  is  given  power  to  "  promote  the  prog-  Power  to 
ress  of  science  and  the  useful  arts,  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries,"  in  other  words  to 
grant  patents  and  copyrights.  A  patent  is  a  certificate 
given  to  an  inventor,  securing  for  him  during  a  designated 
term  of  years  the  exclusive  right  to  make  such  profits  as 
there  may  be  in  his  invention.  The  issue  of  patents  is  in 
the  jurisdiction  of  the  Patent  Office,  a  bureau  in  the  Depart- 
ment of  the  Interior.  The  rules  relating  to  them  are  elabo- 
rate and  complicated.2  A  patent  is  valid  for  seventeen 
years  during  which  time  the  holder  is  protected  by  the  courts 

1  California  vs.  Central  Pacific  R.  R.  Co.,  127  U.  S.  1. 

2  Here  are  a  few  general  provisions :   The  applicant  for  a  patent  must 
make  a  sworn  statement  that  he  believes  himself  to  be  the  original  inventor 
of  the  article  or  process  which  he  seeks  to  patent ;  he  must  submit  descrip- 
tions and  drawings,  also  a  model  if  required  ;  and  must  pay  a  fee  of  fifteen 
dollars.     Not  everything  new  can  be  patented ;  it  must  be  both  "new  and 
useful."     It  must  be  something  "not  patented  or  described  in  any  printed 
publication  in  this  or  any  foreign  country  prior  to  the  invention  and  not 
in  public  use  or  on  sale  in  the  United  States  for  more  than  two  years 
prior  to  the  application."     When  applications  c'ome  in  they  are  referred  to 
examiners  in  the  Patent  Office,  and  if  a  patent  is  issued,  another  fee  of 
twenty  dollars  is  exacted. 


284      THE  GOVERNMENT  OF  THE  UNITED  STATES 

against  infringement.  Trade-marks  have  no  necessary 
relation  to  inventions  or  discoveries  and  do  not  come  within 
the  power  to  issue  patents  or  copyrights.  But  trade-marks 
used  in  interstate  commerce  may  be  registered  at  the  Patent 
Office.  When  intended  for  use  in  trade  within  a  single 
state  they  can  be  protected  only  by  state  registration.  It 
should  be  mentioned,  moreover,  that  the  granting  of  a 
patent  does  not  give  an  inventor  the  right  to  manufacture 
or  to  sell  his  invention  except  under  such  conditions  as  the 
police  power  of  the  states  may  impose.  Even  patented 
articles,  if  dangerous  to  the  safety,  health,  or  morals  of 
the  community,  may  be  excluded  by  the  laws  of  any  state. 
The  imposition  by  the  states  of  a  license  fee  for  the  sale 
of  any  article,  moreover,  would  apply  as  well  to  patented 
merchandise  as  to  any  other.  The  right  to  manufacture 
or  sell  is  not  derived  from  the  patent  and  is  neither  increased 
nor  diminished  thereby. 

Power  to          A_copy_right  secures  exclusive  rights  to  publish  and  sell 
co"16  any  k°°^>  manuscript,  musical  composition,  drawing,  photo- 

rights,  graph,  or  similar  matter  having  inherent  value.  A  mere 
label  or  advertisement,  not  having  value  as  a  composition, 
may  not  be  made  the  basis  of  a  copyright.  The  present 
term  of  a  copyright  is  twenty-eight  years  with  the  oppor- 
tunity for  a  further  renewal  during  an  equal  term.  To 
obtain  copyright  in  the  United  States  a  book  must  be 
actually  printed  in  this  country;  but  this  does  not  apply 
to  books  in  languages  other  than  English.1  Many  attempts 
have  been  made  to  secure  some  form  of  international  copy- 
right agreement  so  that  an  author  may  have  protection 
in  all  countries,  and  some  progress  in  this  direction  has 
been  made  by  means  of  treaties. 

Power  to  Congress  is  given  power  to  create  tribunals  inferior  to  the 

subordih       Supreme   Court,   in   other  words  to  provide   a   system  of 

nate  subordinate  federal  tribunals.     The  Supreme  Court  is  the 

courts.          only  federal  tribunal  for  which  the  constitution    expressly 

provides ;   the  other  courts  were  left  to  be  organized  at  the 

discretion  of  Congress  but  subject  to  the  general  provisions 

1  Application  for  copyright  is  made  to  the  Librarian  of  Congress.  The 
fee  is  only  one  dollar,  but  two  copies  of  the  copyrighted  publication  must 
be  given  to  the  Library. 


MISCELLANEOUS  POWERS  OF  CONGRESS  285 

relating  to  the  security  of  judges  in  tenure  and  remunera- 
tion. In  virtue  of  this  power  Congress  has  established  the 
system  of  district  and  circuit  courts  which  are  described 
in  a  later  chapter,  and  has  allotted  to  them  their  respective 
spheres  of  jurisdiction. 

"To  define  and  punish  piracies  and  felonies  committed  Powers 
on  the  high  seas,  and  offences  against  the  law  of  nations" 
is  another  power  granted  to  Congress.  The  high  seas  are  high 
the  waters  outside  the  three-mile  limit,  or,  to  speak  more 
accurately,  beyond  a  distance  of  one  marine  league.  Inter- 
national law  recognizes  that  the  territorial  jurisdiction 
extends  to  this  distance  from  the  shore,  but  beyond  this 
limit  the  salt  waters  of  the  earth  are  the  "high  seas"  over 
which  all  are  free  to  travel  in  time  of  peace  without  restric- 
tion. Over  American  vessels  on  the  high  seas  the  federal 
government  has  sole  jurisdiction.  Piracy  is  now  a  thing 
of  the  past ;  it  was  the  offence  of  committing  depredations 
at  sea  without  color  of  authority  derived  from  any  govern- 
ment. Regarded  as  the  enemy  of  mankind  a  pirate  might 
lawfully  be  captured  by  any  one  on  the  high  seas  and  pun- 
ished in  any  country.  Offences  against  the  "law  of  nations" 
or  against  the  rules  of  international  law  are  for  the  most 
part  breaches  of  neutrality.  Congress  has  defined  the 
duties  of  American  citizens  when  other  countries  are  at 
war  and  forbids  the  commission  of  unneutral  acts  on  Ameri- 
can territory,  as,  for  example,  organizing  armed  expeditions 
or  fitting  out  armed  vessels  in  aid  of  a  belligerent  power. 
Such  "offences  against  the  law  of  nations"  are  punished 
by  the  federal  courts. 

As  for  the  national  government's  authority  to  issue  letters 
of  marque  and  reprisal,  in  other  words  to  grant  authoriza- 
tions to  privateers  or  predatory  private  vessels  —  that 
authority,  although  granted  by  the  constitution,  is  of  no 
consequence  to-day.  For  while  the  United  States  has  not, 
like  all  the  chief  European  states,  relinquished  formally 
the  right  to  use  privateers  in  time  of  war,  the  practice  of 
privateering  will,  in  all  probability,  never  again  be  revived. 
The  rules  of  international  law  are  not  always  exact  and 
definite ;  but  most  of  them  are  sufficiently  so  to  permit 
their  being  properly  applied.  International  law,  unlike 


286      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Exclusive 
jurisdiction 
over  the 
national 
capital. 


The 

"implied 

powers." 


the  law  of  a  single  country,  has  no  single  tribunal  with  author- 
ity to  enforce  it.  The  federal  courts  of  the  United  States 
apply  the  rules  of  international  law  only  where  the  contro- 
versy arises  within  American  jurisdiction. 

The  question  of  a  national  capital  gave  the  makers  of  the 
constitution  some  trouble.  The  prize  was  coveted  by  vari- 
ous cities,  both  north  and  south.  To  avoid  an  embarrassing 
difficulty,  therefore,  the  whole  matter  of  selecting  a  capital 
was  left  to  be  decided  by  Congress  after  the  constitu- 
tion should  go  into  operation.  It  was  felt  that  an  en- 
tirely new  city  should  be  founded  to  serve  as  the  seat  of 
national  government,  and  with  that  idea  in  mind  provision 
was  made  for  creating  a  small  district  completely  under 
national  control.  In  establishing  the  District  of  Colum- 
bia, Congress  later  availed  itself  of  this  power  "to  ex- 
ercise exclusive  legislation  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by 
cession  of  particular  states  and  the  acceptance  of  Congress, 
become  the  seat  of  government  of  the  United  States."  The 
jurisdiction  of  Congress  over  this  area  is  complete.  As 
will  be  seen  later,  the  District  of  Columbia  has  no  system 
of  local  self-government,  and  Washington  is  the  only  large 
municipality  in  the  country  of  which  that  can  be  said.1 

Finally,  there  is  the  national  government's  right  to  make 
all  laws  which  shall  be  necessary  and  proper  for  carrying 
any  of  its  general  powers  into  execution.  This  is  sometimes 
referred  to  as  the  "implied  powers  clause"  of  the  constitu- 
tion, or  as  vesting  in  the  national  government  a  "coefficient 
power."  Laws  are  the  agencies  through  which  all  the  powers 
granted  by  the  constitution  either  to  Congress  or  to  the 
President  are  carried  into  effect.  The  exercise  of  every 
constitutional  power  requires  a  law.  The  law  adds  nothing 
to  the  scope  of  powers  already  possessed ;  it  merely  makes 
the  powers  effective.  Where  a  power  is  granted,  the  right 
to  carry  it  into  effect  is  implied.  To  desire  the  end  is  to 
tolerate  the  means.  The  Supreme  Court,  as  already  indi- 
cated, has  interpreted  this  clause  liberally,  giving  to  the 
central  government  a  large  range  of  choice  as  to  the  means 
which  it  will  employ  in  carrying  its  powers  into  effect.  The 
1  Below,  pp.  384-388. 


MISCELLANEOUS  POWERS  OF  CONGRESS  287 

"  implied  powers  clause,"  moreover,  extends  not  only  to  the 
enumerated  powers  of  Congress  but  to  whatever  authority 
is  granted  by  the  constitution  to  any  officer  or  department 
of  the  national  government. 

These,  then,  are  the  powers  of  Congress  as  enumerated 
in  the~constitution.  The  simple  words  in  which  they  are 
clothed  give  rather  scant  guidance  to  any  proper  conception  in  general, 
of  what  these  powers  express  and  imply  at  the  present  day. 
The  lapse  of  time  has  shown  that,  if  anything,  the  constitu- 
tion gave  to  Congress  too  few  powers  rather  than  too  many. 
It  might  well  have  included  the  authority  to  make  uniform 
rules  concerning  the  chartering  of  corporations,  concerning 
marriage  and  divorce,  and  concerning  the  rights  of  aliens 
in  the  several  states.  These  matters,  being  left  to  each 
state  for  its  own  determination,  have  been  dealt  with  by 
some  in  ways  which  not  only  operate  unfairly  toward  others 
but  which  are  contrary  to  the  best  interests  of  American 
society  as  a  whole. 


CHAPTER  XX 


Constitu- 
tional 
limitations ; 
their 
nature 
and 
importance. 


The  chief 
•limitations 
upon 

legislative 
power : 

1.  As  to 
bills  of 
attainder. 


CONSTITUTIONAL  LIMITATIONS  ON  THE  POWERS  OF  CONGRESS 

IN  the  preceding  chapters  the  various  powers  of  Congress, 
express  and  implied,  have  been  outlined.  The  constitution, 
however,  does  more  than  grant  certain  powers.  It  imposes 
limitations  upon  Congress  in  the  exercise  of  its  legislative 
authority,  and  these  limitations  are  matters  of  supreme 
importance  in  American  constitutional  law.  Some  of 
them  relate  only  to  the  way  in  which  a  power  may  be  exer- 
cised, as  for  example  the  provision  that  all  taxes  shall  be 
uniform,  and  these  limitations  have  been  already  indicated 
in  connection  with  each  of  the  congressional  powers  con- 
cerned. But  others  are  in  the  nature  of  general  prohibi- 
tions which  forbid  the  exercise  of  certain  powers  under  any 
circumstances.  These  restrictions  and  prohibitions  are 
either  expressly  set  forth  in  the  constitution  or  may  be 
reasonably  implied  from  its  provisions. 

Congress  is  forbidden  to  pass  any  bill  of  attainder.  A 
bill  of  attainder  may  be  defined  as  a  legislative  act  which 
inflicts  a  penalty  without  a  judicial  trial.1  Legislation  of 
this  sort  was  frequent  during  the  Tudor  and  Stuart  periods 
of  English  history.  By  bills  of  attainder  men  in  high  office 
were  " attainted"  of  treason  and  sent  to  the  scaffold  without 
even  the  forms  of  judicial  process ;  their  descendants  even 
unto  the  third  and  fourth  generation  being  deprived  of 
civil  rights.  By  a  modified  form  of  attainder  known  as 
bills  of  pains  and  penalties  men  were  fined,  or  thrown  into 
prison,  or  had  their  property  confiscated.  The  enactment 
of  attainders  in  any  form  is  prohibited  by  the  constitution 
because  its  makers  did  not  believe  that  any  legislature  ought 

1  W.  W.  Willoughby,  Constitutional  Law  of  the  United  States  (2  vols., 
N.  Y.,  1910),  ii,  801. 

288 


LIMITATIONS  ON  THE  POWERS  OF  CONGRESS     289 

to  assume  the  function  of  condemning  men  without  the 
safeguards  of  judicial  process.  After  the  Civil  War  some 
of  the  border  states  tried  to  exclude  from  officeholding  all 
who  refused  to  take  an  oath  that  they  had  not  voluntarily 
borne  arms  against  the  Union  ;  but  the  Supreme  Court  held 
this  to  be  unconstitutional  in  that  it  imposed  a  penalty 
without  judicial  condemnation.1  There  are  only  two  ways 
in  which  a  penalty  can  ordinarily  be  imposed  upon  any  one 
in  the  United  States ;  one  is  by  the  verdict  of  some  regular 
court  of  competent  jurisdiction  (including  courts-martial) ; 
the  other  is  by  a  legislative  body  serving  as  a  tribunal  of 
impeachment.2 

The  same  provision  of  the  constitution  that  prohibits  2.  As  to 
attainders  forbids  also  the  passing  of  ex  post  facto  laws.  €XP°st 
Not  all  laws  which  are  retroactive  in  effect,  or  which  date  laws, 
back  and  cover  events  antecedent  to  their  passage  are  in 
this  class,  however.  The  limitation  applies  to  criminal 
laws  only,  and  even  here  it  does  not  include  any  legislation 
but  that  which  operates  to  the  disadvantage  of  the  accused. 
In  this  matter  one  can  tread  upon  firm  ground,  for  the 
Supreme  Court  many  years  ago  gave  a  full  and  exact 
definition  of  the  ex  post  facto  clause.  It  includes  "  every 
law  that  makes  an  action  done  before  the  passing  of  the  law, 
and  which  was  innocent  when  done,  criminal ;  and  punishes 
such  action ;  every  law  that  aggravates  a  crime,  or  makes 
it  greater  than  it  was,  when  committed ;  every  law  that 
changes  the  punishment,  and  inflicts  a  greater  punishment 
than  the  law  annexed  to  a  crime  when  committed,  and  every 
law  that  alters  the  legal  rules  of  evidence  and  requires  less, 
or  different  testimony,  than  the  law  required  at  the  time 
of  the  commission  of  the  offence,  in  order  to  convict  the 
offender."  3  In  a  word  it  includes  any  law  which  operates 
to  the  detriment  of  an  accused  person,  provided  such  law 
was  passed  after  the  alleged  crime  was  committed. 

Taking  a  lesson  from  the  annals  of  parliament  the  makers  3.  AS  to 
of    the   constitution  limited  the  power  of  Congress  with  Jj^^J*' 
respect  both  to  the  definition  and  the  punishment  of  trea-  punishment 
son.     Treason  is  the  oldest  of  crimes.     In  the  history  of  Eng-  of  treason- 

1  Cummings  vs.  Missouri,  44  Wallace,  277. 

2  Cf.  below,  p.  292.  8  Calder  vs.  Bull,  3  Ball.  386. 

u 


290      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Early  his- 
tory of 
treason. 


The 

American 
constitu- 
tional 
definition. 


Strict 
construc- 
tion of 
this 
definition. 


land  it  goes  back  to  the  time  of  the  Saxon  kings.  Originally  it 
was  the  offence  of  killing  the  sovereign,  but  as  time  went 
on  various  other  offences  were  included,  such  as  the  killing 
of  the  king's  relatives  and  the  levying  of  war  against  the 
established  government.  During  several  centuries  the 
category  of  treasons  steadily  widened,  all  manner  of  "  new- 
fangled treasons"  being  added  to  the  list  from  reign  to 
reign  until  the  unrestricted  power  to  make  and  alter  the 
law  of  treason  became  a  great  weapon  of  abuse  and  oppres- 
To  make  sure  that  there  should  be  no  such  extension 


sion. 


in  the  United  States  the  constitution  restricts  the  designation 
of  treason  to  a  certain  definite  offence,  namely,  that  of 
levying  war  against  the  United  States,  adhering  to  their 
enemies,  giving  them  aid  and  comfort.  It  further  provides 
that  "no  person  shall  be  convicted  of  treason,  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court,"  and,  moreover,  that  no  penalty 
for  treason  shall  extend  beyond  the  life  of  the  person  con- 
victed. No  punishment  may  be  extended  to  descendants, 
or,  as  the  words  of  the  constitution  express  it,  the  penalties 
shall  not  "work  corruption  of  blood  or  forfeiture,  except 
during  the  life  of  the  person  attainted." 

Tp_  constitute ^the_crjme  of  treason  thp.re  rY\\\^,  fcp.  _a.n 
overt  act  of  levying  war  or  assisting  the  enemy.  Ordinary 
resistance  to  public  authority  in  the  form  of  riots  does  not 
come  within  this  definition,  but  any  rising  of  armed  men  with 
intent  to  overthrow  the  government  or  to  deprive  it  of  its 
functions  is  an  overt  levying  of  war  and  hence  constitutes 
treason.  Mere  conspiracy  to  create  an  insurrection,  and 
even  the  enlistment  of  men,  do  not  amount  to  overt  acts  of 
treason ;  there  must  be  an  actual  assembling  of  men  for  a 
treasonable  purpose.1  In  general  the  Supreme  Court  has 
declined  to  extend  the  definition  of  treason  to  doubtful 
cases  and  has  required  that  the  offence  shall  come  well 
within  the  words  of  the  constitution.  Treason  may  be 
committed  not  only  by  a  citizen  but  by  an  alien,  provided 
he  is,  at  the  time  of  the  offence,  within  the  jurisdiction  of 
the  United  States.  The  punishment  of  treason  against  the 
United  States,  as  fixed  by  statute,  is  death.  Crimes  against 

1  Ex  parte  Bollman,  4  Cranoh,  75. 


LIMITATIONS  ON  THE  POWERS  OF  CONGRESS     291 

the  security  of  the  nation  not  amounting  to  treason,  such  as  The 
inciting  to  rebellion,  sedition  and  seditious  conspiracy,  are  penalty- 
also  made  punishable  by  statute,  but  not  with  the  same 
degree  of  severity. 

Treason  against  the  United  States  should  be  distinguished  Treason 
from  treason  against  a  state  of  the  Union.  The  federal 
constitution  makes  no  mention  of  the  latter,  hence  each  state 
may  make  its  own  definitions  and  provide  its  own  degree 
of  punishment.  All  of  the  states,  either  in  their  own  con- 
stitutions or  by  statute,  have  exercised  this  right,  but  in  the 
main  they  have  followed  the  federal  practice. 

Among  the  provisions  of  the  Great  Charter  which  the  4.  AS  to 
barons  of  England  wrung  from  King  John  in  1215  there  was  *ationPri 
a  stipulation   that   no  freeman  should  be  in  any  manner  of  life, 
penalized  save  by  "the  lawful  judgment  of  his  peers  or  by  property 
the  law  of  the  land."     This  fundamental  right  of  all  free-  without 
men,  after  an  existence  of  more  than  five  hundred  years  in 
England,  made  its  way  into  the  constitution  of  the  United 
States  as  a  part  of  the  Fifth  Amendment,  which  provides 
that  "no  person  shall  be  ...  deprived  of  life,  liberty  or 
property  without  due  process  of  law."       The  meaning  and 
scope  of  these  four  words  "due  process  of  law,"  however, 
have  given  the  courts  and  the  commentators  a  plenitude 
of  trouble,  and  even  to-day  their  exact  application  is  not 
absolutely  clear.     Few  legal  phrases  in  the  whole  history  of 
jurisprudence,   indeed,   have   proved   so    elusive    of   exact 
comprehension.     The   highest   American   tribunal   has   re- 
frained from  committing  itself  to  any  hard  and  fast  definition 
of  the  term,  preferring  rather  that  "its  full  meaning  should 
be  gradually  ascertained  by  the  process  of  inclusion  and 
exclusion  in  the  course  of  decisions  in  cases  as  they  arise."  2 

But  all  students  of  constitutional  law  know  in  a  general  The  mean- 
way  what  the  phrase  means.     Due  process  of  law  is  an  i?*u°£ 
approximate  equivalent  of  the  per  legem  terrae  of  the  Great  process." 
Charter.     It  means  that  there  must  be  in  all  actions  to 
deprive  a  man  of  his  "life,  liberty  or  property"  an  observance 

1  The  phrase  "due  process  of  law"  first  appeared  in  a  statute  passed 
by  parliament  in  the  fourteenth  century  (28  Edw.  Ill,  3).     We  have  the 
word  of  the  great  English  jurist,  Sir  Edward  Coke,  in  his  Institutes,  that 
it  was  there  used  as  the  equivalent  of  the  older  phrase  "law  of  the  land." 

2  Twining  vs.  New  Jersey,  211  U.  S.  78. 


292      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Webster's 
definition. 


The  ap- 
plication 
of  due 
process : 
(a)  to 
judicial 
procedure. 


(6)  to 
freedom 
of  contract. 


of  those  general  rules  which  are  essential  to  the  safeguarding 
of  the  individual's  rights,  those  judicial  forms  and  usages 
which  by  general  consent  have  become  inseparable  accom- 
paniments of  .fair  procedure.  Daniel  Webster  in  a  famous 
argument  before  the  Supreme  Court  gave  a  definition  of  due 
process  which  has  been  much  quoted  and  which  will  probably 
serve  the  layman  as  well  as  any  other.  It  is  the  process  of 
law,  he  asserted,  "which  hears  before  it  condemns,  which 
proceeds  upon  enquiry,  and  renders  judgment  only  after 
trial.  The  meaning  is  that  every  citizen  shall  hold  his 
life,  liberty,  property  and  immunities  under  the  protection 
of  the  general  rules  which  govern  society."  1 

Where  the  difficulty  comes,  however,  is  in  the  application 
of  these  "general  rules  which  govern  society"  to  particular 
cases.  In  the  main  the  courts  have  held  that  due  process 
of  law  always  involves  a  hearing  of  the  issue  by  competent 
authorities  before  it  is  decided ;  but  they  have  not  been 
ready  to  go  much  further  than  this  so  far  as  procedure  is 
concerned.  It  is  now  settled  that  due  process  of  law  does 
not  necessitate  a  trial  by  a  jury  or  even  by  a  court  of  law 
at  all,  but  that  issues  involving  a  deprivation  of  property 
may  in  certain  instances  be  determined  by  administrative 
officers,  for  example,  that  a  man's  property  may  be  taken 
and  sold  upon  the  order  of  city  officials  for  failure  to  pay 
taxes,  provided  the  owner  has  been  given  fair  notice.  Due 
process  does  not  require  that  an .  accused  be  given  the 
right  to  appeal  from  a  lower  to  a  higher  court  or  that  the 
incidental  forms  of  judicial  procedure  at  any  trial  shall 
be  rigidly  adhered  to.2 

The  chief  application  of  this  phrase  has  not  been  to 
judicial  procedure  but  to  what  is  compendiously  called  the 
"right  to  freedom  of  contract."  This  right  to  make  con- 
tracts and  to  have  them  enforced  is  a  corollary  from  the 
general  rights  of  liberty  and  property  which  the  Fifth 
Amendment  guarantees  against  deprivation.  The  Supreme 
Court  has  stood  guard  against  frequent  attempts  to  deprive 
individuals  and  corporations  of  their  freedom  of  contract 

1  The  Dartmouth  College  Case,  4  Wheaton  518. 

2  L.  P.  McGehee,  Due  Process  of  Law  under  the  Federal  Constitution 
(Northport,  L.  I.,  N.  Y.,  1906),  and  the  cases  there  cited. 


LIMITATIONS  ON  THE  POWERS  OF  CONGRESS     293 

by  the  mere  enactment  of  laws,  whenever  such  laws  are 
not  demanded  by  the  needs  of  public  safety ,  health,  or  moral- 
ity. Federal  laws  providing  for  the  regulation  of  rates  in 
interstate  commerce  concerning  workmen's  compensation, 
the  limitation  of  hours  of  labor  and  a  great  many  other 
matters  in  the  field  of  industry  have  come  before  the  court 
for  review  upon  the  allegation  that  these  laws  involved  a 
deprivation  of  liberty  or  property  without  due  process. 
Some  have  been  upheld,  others  declared  unconstitutional; 
but  in  this  way  the  Supreme  Court  has  assumed  a  con- 
siderable censorship  over  the  economic  legislation  of  Con- 
gress. 

The  due  process  requirement,  as  it  appears  in  the  Fifth  The  due 
Amendment,  does  not  apply  as  a  limitation  upon  the  legis-  j£°^_ 
latures  of  the  several  states,  but  only  upon  Congress.  The  ment  as 
Fourteenth  Amendment,  however,  imposes  the  restriction 
upon  the  state  legislatures  in  exactly  the  same  terms,  so 
that  "due  process  of  law"  is  a  general  requirement  which 
binds  all  American  legislative  authorities.  The  state 
legislatures,  far  more  frequently  than  Congress,  have  sought 
to  interfere  both  with  freedom  of  contract  and  with  prop- 
erty rights,  hence  the  larger  number  of  appeals  to  the 
Supreme  Court  against  alleged  deprivations  have  been 
made  on  the  basis  of  state  laws. 

It  is  to-day  well  recognized  that  "due  process  of  law"  Due  process 
is  not  a  stereotyped  thing.  A  true  philosophy  of  liberty  jj^?* 
must  permit  a  progressive  growth  and  wise  adaptation  to 
new  circumstances.  It  follows,  therefore,  that  any  legal 
proceeding  enforced  by  public  authority,  whether  sanc- 
tioned by  age  or  custom,  or  newly-devised  in  the  discre- 
tion of  the  legislative  power,  in  furtherance  of  the  general 
public  good,  which  regards  and  preserves  the  principles  of 
liberty  and  justice,  must  be  held  to  be  due  process  of  law.1 
To  declare  once  and  for  all  that  certain  formalities  of  pro- 
cedure must  in  every  case  be  observed  where  personal 
liberty  or  property  are  concerned  would  be  to  mummify 
legal  progress.  The  general  requirement  as  to  due  process 
affords  an  adequate  protection  to  the  individual  or  cor- 
poration against  gross  legislative  unfairness ;  it  was  not 

1  Hurtado  vs.  California,  110  U.  S.  516. 


294      THE  GOVERNMENT  OF  THE  UNITED  STATES 


5.   As  to 
the  taking 
of  private 
property. 

The 
right  of 
eminent 
domain. 
What  it 
means. 


The 

limitations 
upon  the 
right  of 
eminent 
domain : 
(a)  as 
to  public 
purpose. 


intended  to  be  a  barrier  to  the  reasonable  regulation  of 
.property  in  the  interests  of  social  and  industrial  justice. 
\2  Linked  with  due  process  in  the  Fifth  Amendment  is  a 
provision  that  "private  property  shall  not  be  taken  for 
public  use  without  just  compensation."  Before  explaining 
this  provision  a  word  must  be  said  about  the  right  of  eminent 
domain  upon  which  the  foregoing  provision  operates  as  a 
limitation.  It  is  a  necessary  attribute  of  every  government 
that  it  shall  have  the  right  to  acquire  for  public  purposes 
the  ownership  or  control  of  private  property  even  without 
the  consent  of  the  owner.  Such  property  is  essential  to 
1  the  carrying  on  of  governmental  functions ;  it  is  needed 
for  forts,  navy-yards,  post-offices,  custom-houses,  prisons, 
highways,  and  so  on.  The  domain  or  property-taking 
right  of  the  government  must  therefore  be  eminent  or 
paramount,  that  is,  superior  to  the  property-holding  right 
of  any  individual.  This  is  a  well-recognized  doctrine  of 
both  jurisprudence  and  political  science,  so  well  recognized, 
in  fact,  that  it  is  now  never  disputed.  In  the  absence  of 
constitutional  limitations,  therefore,  the  nation  and  the 
several  states  might  each  take,  at  their  own  will  and  pleasure, 
any  private  property  for  any  purpose  and  under  such 
terms  of  payment  as  their  legislatures  might  provide  or 
even  without  any  payment  at  all.  In  England,  parliament 
has  that  unfettered  authority,  although  it  does  not  practise 
the  tyranny  of  taking  property  without  paying  for  it. 
But  in  America  the  constitution  contains  express  limitations 
upon  the  power  of  eminent  domain.  The  nation  is  restricted 
by  the  terms  of  the  Fifth  Amendment  and  the  states  are 
limited,  for  the  most  part  in  the  same  words,  by  the  terms 
of  their  own  respective  constitutions. 

\  j  The  limitations  in  both  cases  are  twofold  :  the  taking  of 
property  must  be  for  a  public  purpose,  and  just  compen- 
sation to  the  owner  must  be  given.  But  what  is  a  public 
purpose?  The  courts  have  been  liberal  in  their  interpreta- 
tion of  this  term.  They  have  upheld  the  taking  of  land  for 
post-offices  and  other  buildings,  for  parks,  and  for  all  other 
purposes  related  to  the  functions  of  government.  Not 
only  may  the  government  itself  exercise  this  right  of  taking 
private  property  for  public  purposes,  moreover,  but  it  may 


LIMITATIONS  ON  THE  POWERS  OF  CONGRESS     295 

confer  the  same  right  by  franchise-grant  upon  railroads 
and  other  corporations  engaged  in  public  or  quasi-public 
enterprises.  It  is  with  reference  to  these  public  service 
corporations,  indeed,  that  the  chief  difficulty  is  found  in 
determining  the  constitutional  limitations  upon  the  right 
of  eminent  domain.  It  may  be  generally  stated,  however, 
that  such  power  as  the  government  itself  possesses  in  the 
matter  of  condemning  private  property  it  may  delegate 
to  any  public  utility  corporation.  On  the  other  hand, 
whatever  limitations  apply  to  the  original  authority  of  the 
government  in  this  field  also  apply  when  the  power  is 
delegated  to  a  subordinate  corporation. 

The  private  owner,  when  his  property  is  taken  for  public  (6)  as  to 
use  either  by  the  government  itself  or  by  some  corporation  ^^tSn 
authorized  by  it,  must  always  receive  "just  compensation. " 
What  is  just  compensation  and  how  is  it  determined? 
As  a  rule  the  officers  of  the  government  or  corporation 
make  a  valuation  and  offer  the  owner  the  sum  so  de- 
termined. Then,  by  the  usual  process  of  refusal,  counter- 
proposals, and  compromises,  an  adjustment  may  be  made. 
If  the  private  owner  cannot  get  what  he  believes  to  be 
just  compensation  in  this  way,  however,  he  has  an  appeal 
to  the  courts,  where  a  jury  will  decide  what  he  may  receive 
and  must  accept.  Where  private  property  is  taken  by  the 
authority  of  any  state  in  the  Union  the  laws  of  that  state 
prescribe  the  method  by  which  compensation  will  be  de- 
termined. 

Many  express  limitations  with  respect  to  the  methods  6.  As  to 
of   judicial    procedure    are    incorporated    in    the    national  }"^gaand 
constitution,  especially  in  the  first  ten  amendments,  and  procedure, 
these   restrict  the  powers   of   Congress  to   determine    the 
process  which  may  be  used  in  the  federal  courts.     These 
limitations  relate  to  jury  trial,  to  certain  rules  of  evidence, 
to  the  nature  of  punishments,  and  to  second  jeopardy  for 
the  same  offence.     They  will    be  more  appropriately  ex- 
plained in  a  later  chapter  dealing  with  the  judicial  power  of 
the  United  States.1 

As  there  are  implied  powers  in  the  Constitution,  so  there 
are  some  implied  limitations,  in  other  words,  some  restric- 
1  See  ch.  xxiv  below. 


296      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Implied 
limita- 
tions on 
the  powers 
of  Congress. 


The  rule 
as  to 

delegation 
of  legis- 
lative 
power. 


Forbids 
resort  to 
a  nation- 
wide 
referendum. 


Administra- 
tive dis- 
cretion 
may  be 
delegated.    •} 


tions  which  are  not  set  forth  specifically  but  which  follow 
logically  from  the  general  nature,  form,  and  purposes  of 
the  federal  government.  The  constitution,  for  example, 
does  not  expressly  forbid  Congress  to  delegate  any  of  its 
legislative  powers  to  the  President  or  the  heads  of  depart- 
ments or  to  the  various  administrative  boards.  Yet  it  is 
"one  of  the  settled  maxims  in  constitutional  law/'  according 
to  America's  foremost  authority  on  this  subject,  "that  the 
power  conferred  upon  the  legislature  to  make  laws  cannot 
be  delegated  by  that  department  to  any  other  body  or 
authority.  Where  the  sovereign  power  of  the  state  has 
located  that  authority,  there  it  must  remain,  and  by  that 
constitutional  agency  alone  the  laws  must  be  made  until 
the  constitution  itself  is  changed.  The  power  to  whose 
judgment,  wisdom  and  patriotism  this  high  prerogative 
[of  legislation]  has  been  intrusted  cannot  relieve  itself  of  the 
;sponsibility  by  choosing  other  agencies  upon  which  the 
>ower  shall  be  devolved,  nor  can  it  substitute  the  judgment, 
wisdom,  and  patriotism  of  any  other  body  for  those  to  which 
alone  the  people  have  seen  fit  to  confide  this  sovereign 
trust."  l 

Because  of  this  well-recognized  limitation  a  nation-wide 
referendum  as  a  means  of  accepting  or  rejecting  a  law  would 
not  be  constitutional.  Congress  might,  if  it  so  chose,  submit 
a  question  to  the  people  as  a  means  of  securing  an  advisory 
test  of  public  sentiment;  but  the  formal  enactment  of  all 
federal  statutes,  and  the  undivided  responsibility  therefor, 
must  remain  where  the  constitution  placed  it.  Congress 
cannot  delegate  its  legislative  power  and  responsibility 
even  to  the  whole  people.  To  establish  the  principle  of 
direct  legislation  by  the  people,  so  far  as  national  law-making 
is  concerned,  would  require  the  amendment  of  the  federal 
constitution. 

But  while  Congress  may  not  delegate  its  law-making  power 
it  may  depute  to  some  other  body  or  authority  the  function 
of  determining  when  and  how  the  provisions  of  the  law  are 
to  be  carried  out.  This  latter  is  held  to  be  a  ministerial, 
not  a  legislative  function.  It  is  permissible  for  Congress, 

1  T.  M.  Cooley,  Constitutional  Limitations  (7th  ed.,  Boston,  1903), 
p.  163. 


LIMITATIONS  ON  THE  POWERS  OF  CONGRESS     297 

where  it  has  passed  a  law,  to  provide,  for  example,  that  it 
shall  go  into  effect  whenever  the  President  shall  adjudge 
certain  conditions  to  exist  and  shall  so  announce  by  proc- 
lamation.1 While  Congress,  therefore,  cannot  delegate 
its  power  to  make  a  law,  it  can  authorize  the  exercise  of 
administrative  discretion  with  respect  to  matters  which 
are  closely  related  to  law-making.  Just  when  this  dis- 
cretion becomes  so  broad  as  virtually  to  constitute  legislative 
power  is  a  question  which  cannot  be  answered  by  rule. 
The  tendency  of  the  Supreme  Court  in  later  years  has  been 
to  give  administrative  discretion  a  large  amount  of  play. 

This  is   of   great   practical   importance  because   of  the  importance 
steadily  increasing  control  of  business  by  the  law.     Laws  ^ 
are  not  by  nature  resilient,  and  regulation  by  laws  alone,  tive 
unmodified  by  the  exercise  of  official  discretion,  is  reasonably  cretlon- 
sure  to  work  injustice.     The  best  system  of  regulation  is 
one  which  can  bear  heavily  when  the  need  arises  but  relax 
its  weight  when  the  need  disappears.     Hence  it  has  been 
the  policy  of  Congress  to  delegate  to  various  federal  boards, 
such  as  the  Interstate  Commerce  Commission,  the  Federal 
Reserve  Board,  the  Federal  Trade  Commission,  and  even 
various    administrative    officials  such    as   the   Postmaster- 
General  or  the  Commissioner  of  Immigration,  discretionary 
powers   of   a   comprehensive   and   varied   character.     This 
action  has  been  furiously  attacked  in  the  courts  as  con- 
stituting a  delegation  of  legislative  authority.     In  practically 
every  instance,  however,  the  action  of  Congress  has  been 
upheld. 

One    result    of   this   frequent    delegation    of    ministerial  it  has 
discretion  has  been  to  take  the  country,  in  actual  practice,  a 
long  step  away  from  old  legal  traditions.     As  official  discre-  feature  into 
tion  widens,  a  government  becomes  more  and  more  a  gov-  ^0™ern-an 
ernment  of  men.     Hence  we  have  had  in  the  United  States  ment. 
during  the  past  quarter   of  a  century  a  steady  growth  of 
"  administrative  law,"  a  rather  incongruous  term  in  a  country 
which  still  professes  allegiance  to  the  doctrine  of  separation  of 
powers.     So  rapidly  has  this  system  of  administrative  discre- 
tion been  extended  that  to-day  a  considerable  part  of  the  fed- 
eral government's  regulating  authority  is  actually  carried  into 
1  Field  vs.  Clark,  143  U.  S.  649. 


298      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  con- 
flict of 
theory  and 
practice  in 
delegation. 


Importance 
of  the 
whole 
subject. 


operation  by  the  promulgation  of  administrative  rules  and  or- 
dinances, thus  approximating  the  practice  of  European  coun- 
tries. Administrative  supervision  is  far  more  just  and  more 
effective  than  legislative  dictation  couched  in  unbending 
terms,  and  before  the  pressure  of  this  practical  advantage  the 
ancient  theories  of  government  by  law  alone  are  being  relent- 
lessly pushed  off  the  stage.  Let  it  be  made  clear,  however, 
that  in  no  case  may  any  administrative  board  or  officer 
change  any  express  provision  of  a  law,  even  though  such  pro- 
vision may  seem  no  longer  calculated  to  fit  the  needs  of  the 
situation.  Administrative  officers,  no  matter  how  wide 
their  discretion,  can  insert  nothing,  change  nothing,  repeal 
nothing.  Their  discretion  extends  only  to  such  latitude, 
within  the  written  provisions  of  the  law,  as  Congress  may 
designate. 

The  foregoing  are  not  the  only  limitations  placed  by 
the  constitution  upon  the  powers  of  Congress.  Some 
others,  which  relate  more  particularly  to  the  inherent 
rights  of  the  citizen,  have  been  already  discussed  under 
that  heading ;  others,  again,  which  appertain  to  the  forms  of 
judicial  procedure  will  be  explained  more  fully  in  connection 
with  the  jurisdiction  and  work  of  the  federal  courts.  Con- 
stitutional limitations,  a  subject  which  concerns  the  student 
of  European  governments  very  little  or  not  at  all,  can  never 
be  lightly  brushed  aside  by  any  one  who  desires  to  under- 
stand the  spirit  and  the  scheme  of  government  in  the 
United  States.  Nor  is  Congress  alone  in  its  subjection  to 
organic  limitations.  The  state  legislatures  also  have  their 
constitutional  shackles,  as  will  in  due  course  appear. 
American  constitutional  law,  indeed,  is  fundamentally  the 
law  of  constitutional  limitations. 


CHAPTER  XXI 


THE  WORKINGS  OF  CONGRESSIONAL  GOVERNMENT  WITH 
SPECIAL  REFERENCE  TO  CONGRESSIONAL  FINANCE 

THE  Congress  of  the  United  States,  as  the  foregoing 
chapters  have  tried  to  show,  is  a  legislative  organ  of  intricate 
mechanism,  with  its  complicated  rules  and  methods  of 
procedure,  its  multitude  of  committees,  its  varied  powers, 
and  its  equally  significant  limitations.  How  well  or  how 
poorly  does  it  do  the  work  which  a  legislature  ought  to  do  ? 
Does  it  function  smoothly  as  a  legislature  should  ?  The  acid 
test  of  a  constitution  is  the  success  with  which  the  various 
organs  established  by  it  perform  their  functions  and  hold 
their  proper  relations  to  one  another. 

First  among  the  merits  of  congressional  government, 
as  it  has  existed  in  the  United  States  for  over  one  hundred 
and  thirty  years,  is  the  fidelity  with  which  law-making 
has  reflected  the  public  opinion  of  the  country.  That  is 
not  to  imply  that  Congress  has  at  all  times  been  immediately 
responsive  to  popular  sentiment;  but  on  the  whole  it  has 
not  often  failed  to  act  when  the  country  spoke  its  mind.  A 
characteristic  of  American  public  opinion  is  that  it  does  not 
readily  grow  solid  the  country  over.  Sentiment  on  great 
political  issues  of  American  history,  states7  rights,  slavery, 
secession,  the  tariff,  the  currency,  the  regulation  of  business, 
has  shown  great  sectional  divergences  and  on  many  occasions 
Congress  failed  to  act  decisively  because  no  audible  mandate 
came  to  it  from  the  country  as  a  whole. 

Herein  one  finds  a  fundamental  difference  between  the- 
American  and  the  English  conceptions  of  what  a  law- 
making  body  ought  to  do.  Englishmen  speak  of  the 
"governing  classes"  who  have  virtually  dominated  parlia- 

299 


The 

merits  and 
short- 
comings of 
Congress 
as  a  legis- 
lative 
body. 


Its  re- 
sponsive- 
ness  to 
public 
opinion. 


Its 

function 
is  to 
follow, 
not  to  lead. 


300      THE  GOVERNMENT  OF  THE  UNITED   STATES 


Lack  of 
inherent 
leader- 
ship makes 
this  neces- 
sary. 


The 

liberty 
of  the 
individual 
Congress- 
man 

compared 
with 
that  of  a 
member 
of  parlia- 
ment. 


ment  for  many  generations  and  whose  function  it  is  to  assume 
the  r61e  of  leadership,  guiding  public  opinion  along  definite 
lines.  There  are  no  governing  classes  in  America  and  save 
for  a  few  years  after  the  establishment  of  the  Union  there 
never  have  been.  It  has  been  the  function  of  Congress  to 
keep  its  finger  on  the  public  pulse  and  to  be  guided  in  its 
actions  accordingly.  Its  duty  has  been  to  transform 
national  desires  into  statutory  enactments  rather  than  to 
formulate  policies  for  the  nation  to  follow.  So  far  as  the 
national  sentiment  is  crystallized  into  definite  proposals, 
this  has  been  the  work  not  of  Congress  but  of  the  men  who 
make  the  party  platforms. 

It  is  well,  on  the  whole,  that  Congress  has  not  essayed 
the  function  of  leadership,  for  its  organization  is  not  well 
adapted  to  that  task.  Someone  has  remarked  that  even  if 
every  Athenian  citizen  had  been  a  Socrates,  the  Athenian 
assembly  would  still  have  been  a  mob.  So  if  every  member  of 
Congress  were  a  Washington  or  a  Webster,  its  methods  of 
doing  business  would  in  themselves  preclude  the  planning 
and  consummation  of  a  well-defined  legislative  policy. 
The  House  of  Commons  has  been  able  to  guide  political 
opinion  in  Great  Britain  because  it  is  itself  endowed  with 
an  administrative  leadership.  The  doctrine  of  separation 
of  powers  has  denied  that  advantage  to  Congress.  Con- 
gress is  not,  therefore,  to  blame  for  the  lack  of  continuity 
in  American  legislative  policy  or  for  the  paucity  of  well- 
grounded  legal  traditions.  A  new  and  rapidly  growing 
country  changes  its  mind  frequently ;  it  is  proverbially  fickle 
in  its  desires,  and  Congress  has  mirrored  these  trans- 
formations in  public  opinion  with  a  reasonable  degree  of 
accuracy. 

The  eulogists  of  the  British  system  of  representative 
government  have  laid  emphasis  upon  the  way  in  which 
public  proposals  can  be  formulated  by  a  few  ministerial 
leaders  and  carried  through  parliament  without  the  like- 
lihood of  their  being  mutilated  beyond  recognition.  A 
government  measure,  when  once  laid  before  the  House  of 
Commons,  is  reasonably  sure  of  adoption  without  material 
change.  From  the  standpoint  of  clarity  and  expedition  in 
law-making,  and  the  concentration  of  responsibility  for  it, 


THE  WORKINGS  OF  CONGRESSIONAL  GOVERNMENT     301 

this  is  a  great  merit,  but  it  is  achieved  by  sacrificing  the 
personal  discretion  of  the  individual  member.  In  the  House 
of  Commons  it  has  reduced  the  greater  number  of  the 
members,  the  "back-benchers"  as  they  are  called,  to  a 
position  of  virtual  impotence  in  the  making  of  the  laws. 
They  have  no  personal  discretion  as  to  whether  they  will 
or  will  not  support  the  decisions  of  their  leaders.  A  member 
of  the  majority  party  can  vote  against  the  policy  of  the 
cabinet  only  at  the  risk  of  being  branded  as  a  political 
renegade.  If  a  member  of  the  minority  should  support 
any  proposal  of  the  majority,  that  would  be  an  equally 
grave  breach  of  party  allegiance.  Such  things  happen  on 
occasions,  it  is  true,  but  they  are  in  the  highest  degree 
exceptional  and  contrary  to  the  spirit  of  party  government 
as  it  exists  in  Great  Britain.  So  long  as  the  English  legis- 
lator stands  by  his  leaders  he  takes  no  risks,  for  such  action 
is  always  in  itself  a  sufficient  justification  to  his  constituents. 
In  Congress,  on  the  other  hand,  the  discretion  of  the  in- 
dividual member  is  more  extensive  and  his  responsibility  \ 
more  general.  The  obligation  to  support  the  measures  of 
his  party  does  not  transcend  the  obligation  to  do  what  his 
conscience  directs  or  what  his  constituents  desire.  The 
ultimate  character  of  legislation  is  not,  as  a  rule,  determined 
in  advance  by  a  few  leaders ;  and  it  is  never  safely  settled 
until  the  members  of  both  Houses  have  registered  their 
individual  opinions  upon  it.  So  far  as  caucus  action  is 
taken  upon  measures  before  Congress  this  liberty  of  the 
individual  member  is  impaired,  but  relatively  few  measures 
are  made  the  subject  of  caucus  decision.  One  of  the 
striking  characteristics  of  congressional  government,  there- 
fore, is  the  emphasis  which  it  places  upon  the  discretion 
and  the  responsibility  of  the  individual  member.  This  is  a 
feature  which  secures  to  every  congressional  district  its 
due  share  in  the  law-making  process. 

The  theory  of  English  parliamentary  government  is  that  a  Congres- 
minority  party  has  no  right  to  influence  the  legislative  policy  Jjjjlface  to 
of  the  majority.     But  the  business  of  Congress  is  not  con-  the  rights 
ducted  on  that  principle.     A  minority  there  has  powerful 
weapons  by  virtue  of  the  rules  and  the  usages.     The  pres- 
ence of  a  majority  of  the  members  being  necessary  to  do 


302      THE  GOVERNMENT  OF  THE  UNITED   STATES 


Where 

Congress 

fails. 


Its  in- 
efficiency 
in  public 
finance. 


Stages 
in  the 
making 
of  appro- 
priations. 


1.    The 
estimates: 
how  pre- 
pared. 


business  in  Congress,  it  is  often  within  the  power  of  the 
minority,  when  the  ranks  of  the  two  parties  are  not  widely 
apart,  to  prevent  the  progress  of  business.  If  Congress  is 
to  get  through  its  huge  program  at  any  session,  moreover, 
the  advancing  of  measures  must  be  had  in  a  great  many 
cases  by  unanimous  consent,  and  a  minority,  however 
small,  may  establish  a  legislative  blockade  by  refusing  this. 
But  most  important  of  all  is  the  fact  that  a  party  majority 
in  Congress  is  not  always  to  be  counted  upon.  Sectional 
interests  often  outweigh  party  allegiance.  Relatively  few 
measures  pass  both  Houses  of  Congress  by  a  straight  party 
vote.  Hence  the  individual  member  of  Congress  has  a 
much  greater  personal  share  in  moulding  the  policy  of  the 
country  than  has  the  member  of  parliament  unless  the 
latter  happens  to  be  also  a  member  of  the  ministry. 

On  the  other  hand  Congress  has  the  defects  of  its  qualities. 
The  absence  of  official  leadership  is  the  source  of  friction, 
log-rolling,  working  at  cross  purposes,  and  hopeless  diffu- 
sion of  responsibility.  As  an  appropriating  body  Congress 
appears  at  its  worst  and  in  handling  that  branch  of  public 
business  can  scarcely  bear  favorable  comparison  with  the 
national  legislature  of  any  other  country.  Its  methods  are 
clumsy,  provocative  of  delay,  and  an  incentive  to  extrava- 
gance. In  no  other  field  of  Congressional  activity  is  the 
need  for  reform  more  urgent  than  in  this. 

It  is  a  fundamental  principle  of  popular  government  that 
public  expenditures  shall  not  be  authorized  save  by  the 
representatives  of  the  people.  Accordingly  it  is  provided 
in  the  constitution  of  the  United  States  that  "no  money 
shall  be  drawn  from  the  Treasury  but  in  consequence  of 
appropriations  made  by  law."  The  first  essential  step  in 
all  national  expenditure  is,  therefore,  that  Congress  shall 
make  an  appropriation  in  the  form  of  a  law.  Before  an 
appropriation  bill  is  submitted  to  Congress,  however,  there 
are  some  preliminary  steps  which  should  be  indicated. 

Most  of  the  functions  of  national  government  (such  as 
the  maintenance  of  the  army,  the  navy,  public  works,  the 
administration  of  justice,  and  so  on)  are  in  the  jurisdiction 
of  some  executive  department.  Each  of  these  departments, 
therefore,  submits  an  estimate  of  the  amount  of  money 


THE  WORKINGS  OF  CONGRESSIONAL  GOVERNMENT     303 

that  it  needs  for  the  ensuing  fiscal  year.  These  estimates 
are  made  out  in  detail.  The  sheets  are  then  put  together 
and  given  as  a  whole  to  the  Secretary  of  the  Treasury  who 
transmits  them  to  the  Speaker  of  the  House.  In  printed 
form  they  make  up  a  volume  of  many  hundred  pages.  Along 
with  these  departmental  estimates  the  Secretary  forwards 
his  forecast  of  probable  revenues  for  the  year. 

In  preparing  their  estimates  the  various  departments  act  Lack  of 
independently.     Each  formulates  its  own  requirements  with- 
out  any  reference  to  the  needs  of  the  others,  and  without  them, 
knowing  how  much  there  will  be  to  spend.     The  Secretary  of  2.  Sent 
the  Treasury  has  no  power  to  prune  these  estimates ;  he  is 
merely  a  channel  for  transmitting  them  to  Congress.     As  a  of  the 
natural  consequence  the  estimates,  when  totalled  together,  Treasury- 
are  always  far  in  excess  of  the  probable  revenues.     Since 
March  4,  1909,  the  law  requires  the  Secretary,  whenever  he'  The  change 
finds  the  estimated  expenditures  in  excess  of  the  probable  of  1909- 
revenues,   to    "transmit   a   detailed    estimate   of   all   said 
estimates  to  the  President,  to  the  end  that  he  may,  in 
giving  Congress  information  of  the  state  of  the  Union,  and 
in  recommending  to  their  consideration  such  measures  as 
he  may  judge  necessary,  advise  Congress  how  in  his  judg- 
ment the  estimated  appropriations  could,  with  the  least 
injury  to  the  public  service,  be  reduced  so  as  to  bring  the 
appropriations  within  the  estimated  revenues,  or,  if  such 
reduction  be  not  in  his  judgment  practicable  without  undue 
injury  to  the  public  service,  that  he  may  recommend  to 
Congress  such  loans  or  new  taxes^as  may  be  necessary  to 
cover  the  deficiency."  O 

Since  the  adoption   of  this  provision  it  has  been  the  Has  not 
practice   of  the  President  to   name   a   committee  of    the  p^^J 
Cabinet  to  go  over  the  estimates  before  they  are  sent  to  the  much. 
Secretary  of  the  Treasury.     But  the  task  is  so  large  that  no 
group  of  busy  men  can  attend  to  it  properly  in  their  spare 
time.     Despite  the  act  of  1909  the  estimates  continue  to 
be  framed  and  sent  to  Congress  without  any  mutual  co- 
operation among  the  executive  departments. 

Now  comes  the  next  step.     The  Speaker  of  the  House 

1  Henry  Jones  Ford,  The  Cost  of  Our  National  Government  (N.Y.,  1910), 
p.  128. 


304      THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.  Refer- 
ence of 
estimates 
to  com- 
mittees. 


4.    Supple- 
mentary 
estimates 
straggle  in. 


5.   Bills 
are  also 
filed  by 
individual 
Congress- 
men. 


6.    The 
appropria- 
tion 

measures 
framed  by 
the  com- 
mittees. 


receives  the  estimates  from  the  Secretary  of  the  Treasury. 
His  function,  thereupon,  is  to  refer  them  to  the  several 
committees  of  the  House  for  consideration.  Eight  or  nine 
different  committees  each  get  a  portion.  The  largest  share 
goes  to  the  Committee  on  Appropriations ;  but  the  Com- 
mittee on  Military  Affairs,  the  Committee  on  Foreign  Affairs, 
the  Naval  Committee,  the  Post-Office  Committee,  and  vari- 
ous others  each  get  the  estimates  relating  to  their  several 
branches  of  administration.  These  committees  then  proceed 
to  hear  what  the  various  heads  of  departments  or  chiefs  of 
bureaus  have  to  say  in  explanation  of  their  estimates.  No 
official  of  an  executive  department  may  sit  or  speak  in 
Congress,  but  he  may  appear  before  one  of  its  committees, 
and  in  the  long  run  that  is  about  as  effective  a  way  of  making 
his  opinions  known. 

Each  of  these  eight  or  nine  committees  does  its  work 
independently.  No  one  knows  what  the  others  are  doing ; 
each  is  solely  concerned  with  its  own  estimates.  To  make 
matters  worse,  supplementary  estimates  keep  coming  in 
after  the  committees  have  their  work  under  way.  These 
supplementary  estimates  are  to  provide  for  things  which 
have  been  overlooked  by  executive  departments  in  making 
out  their  original  estimates,  or  for  new  and  unforeseen 
demands  which  have  arisen. 

Various  bills  involving  expenditures,  again,  are  filed  by 
Congressmen  after-  the  session  begins.  Such  measures 
include  bills  for  the  erection  of  post-offices  and  other  public 
buildings,  for  dredging  rivers  and  harbors,  for  the  con- 
struction of  roads,  and  for  various  other  matters  in  which 
the  representatives  are  directly  interested.  These  bills 
also  go  to  the  proper  committees  for  consideration. 

After  each  committee  has  deliberated  upon  all  these 
proposals  to  spend  money  it  reports  one  or  more  appro- 
priation measures  in  which  the  expenditures,  as  the  com- 
mittee has  finally  decided  upon  them,  are  provided  for. 
These  measures  are  either  in  the  form  of  the  regular  appro- 
priation bills,1  based  upon  the  estimates  sent  in  by  the 

1  Ordinarily  there  are  fourteen  regular  appropriation  bills,  as  follows : 
(1)  Legislative,  executive,  and  judicial  expenditure,  (2)  District  of  Colum- 
bia Appropriation  bill,  (3)  Fortification  bill,  (4)  Pension  bill,  (5)  Army 


THE  WORKINGS  OF  CONGRESSIONAL  GOVERNMENT     305 

executive  departments,  or  they  take  the  form  of  "  omnibus i" 
bills,  made  up  by  lumping  together  such  separately-intro- 
duced proposals  for  expenditure  as  the  committee  may 
favor.  It  is  with  respect  to  these  omnibus  bills  that  the 
greatest  opportunities  for  log-rolling  are  presented.  Nearly 
every  congressman  has  some  project  for  spending  public 
money  in  his  own  district,  and  if  it  is  not  recommended  in 
the  estimates  of  some  executive  department,  he  endeavors 
to  get  it  wedged  into  one  of  the  omnibus  enactments. 
Every  year  many  millions  of  dollars  are  appropriated  in 
this  way  for  post-office  buildings  which  the  Postmaster- 
General's  department  has  not  asked  for  and  which  it  would 
advise  against  if  its  advice  were  asked. 

These  bills  are  then  reported  to  the  House,  where  they  7.  Put 
are  put  through  their  several  stages.     To  give  them  detailed  J£^ugh 
consideration  is  quite  out  of  the  question  in  a  body  which  various 
numbers  four  hundred  members.     Consequently  they  go  f*8^ 
through,  for  the  most  part,  just  as  they  come  from  the  House, 
committees.     A  little  may  be  added  here  and  taken  off 
there,  but  great  increases  or  reductions  are  rarely    made. 
In   appropriation   bills   totalling   nearly    a   billion   dollars 
reported  by  committees  in  1916  the  House  made  changes 
amounting  to  less  than  five  millions  in  all.     The  spending- 
power  of  the  House  is  thus  diffused  among  various  com- 
mittees which  do  not  work  together  on  any  single  plan. 

Having  passed  the  House  the  bills  go  to  the  Senate.  8.  Sent 
Here  the  system  of  consideration  by  committees  is  much 
simpler.  All  appropriation  bills  go  to  one  Committee  on 
Appropriations,  with  the  exception  of  the  Rivers  and  Harbors 
bill,  which  is  referred  to  the  Committee  on  Commerce. 
Before  these  two  committees  the  senators  may  urge  amend- 
ments, and  many  of  them  do  so,  usually  in  the  way  of 
proposed  increases  or  new  items.  When  the  bills  are 
reported  to  the  whole  Senate,  accordingly,  the  aggregate 
amounts  are  almost  always  increased.  With  these  amend- 
ments and  others  that  may  be  added  in  the  Senate  itself 

bill,  (6)  Military  Academy  bill,  (7)  Naval  bill,  (8)  Post-Office  bill, 
(9)  Indian  Affairs  bill,  (10)  Rivers  and  Harbors  bill,  (11)  Agricultural 
bill,  (12)  Diplomatic  and  Consular  bill,  (13)  Sundry  Civil  bill,  and  finally 
(14)  the  Deficiency  Appropriation  bill. 


306      THE  GOVERNMENT  OF  THE  UNITED  STATES 


9.  The 
Senate's 
part  in 
appro- 
priations. 

10.  The 
final  com- 
promising 
and  the 
executive 
approval. 

Influence 
of  the 
President 
in  appro- 
priations. 


How  appro- 
priations 
are  made  in 
other 
countries. 


after  the  committees  have  reported,  the  bills  are  finally 
sent  to  Committees  of  Conference  made  up  of  selected 
senators  and  representatives.  It  is  the  function  of  these 
conference  committees  to  adjust  the  items  so  that  both 
chambers  may  agree  and  get  them  finally  passed.  Com- 
promises here  and  there  are  made ;  the  conferees  report 
these  to  their  respective  chambers,  which  then  pass  the 
bills  and  send  them  to  the  President  to  be  signed. 

When  an  appropriation  bill  has  been  passed  by  Congress 
the  President  has  practically  no  alternative  but  to  accept 
it.  He  can  veto  the  whole  bill  if  he  chooses  to  do  so  ;  but 
he  cannot  veto  any  items  in  a  bill,  leaving  the  rest  to  stand. 
To  veto  a  whole  appropriation  bill  because  certain  items 
in  it  are  objectionable,  thereby  depriving  some  department 
of  the  national  government  of  funds  for  carrying  on  its  work, 
is  a  rather  drastic  step.  Consequently  the  President,  as  a 
rule,  registers  his  objections  to  the  offensive  items  but  signs 
the  bills  all  the  same.  The  result  is  that  the  veto  power,  so 
far  as  the  spending  of  public  money  goes,  is  reduced  almost 
to  a  nullity.  Such  a  situation  is  both  embarrassing  to  the 
President  and  costly  to  the  taxpayers.  Public  opinion 
holds  the  President  responsible  for  extravagances  which  he 
is  in  reality  quite  powerless  to  prevent. 

In  this  complicated  procedure  two  things  stand  out 
prominently,  first,  the  marked  difference  between  the  way 
appropriations  are  made  in  the  United  States  as  compared 
with  other  countries,  and  second,  the  considerable  share 
which  the  Senate  has  assumed  in  the  authorizing  of 
expenditures.  In  England,  in  France,  and  indeed  in  every 
country  having  constitutional  government  except  the 
United  States  and  the  Latin-American  republics,  there  is  a 
centralization  of  responsibility  for  all  proposals  to  spend 
public  money.  In  England,  no  proposal  to  spend  money 
can  be  considered  by  the  House  of  Commons  unless  it  comes 
from  the  crown,  that  is,  unless  it  comes  to  the  House  with  the 
indorsement  of  the  cabinet.1  No  proposal  of  expenditure 

1  Here  is  the  rule  (adopted  more  than  two  hundred  years  ago) :  "This 
House  will  receive  no  petition  for  any  sum  relating  to  the  public  service, 
or  proceed  upon  any  motion  for  a  grant  or  charge  upon  the  public  revenue 
—  unless  recommended  by  the  Crown." 


THE  WORKINGS  OF  CONGRESSIONAL  GOVERNMENT     307 

can  reach  the  Chamber  of  Deputies  in  France  unless  it  is 
sent  by  the  executive  branch  of  the  government.  In  the 
United  States,  on  the  other  hand,  any  head  of  a  department, 
any  senator,  any  representative,  any  citizen  through  the 
agency  of  his  congressman  in  fact,  may  obtain  a  hearing 
upon  proposals  to  spend  the  nation's  money. 

Lord  Bryce  quotes  an  unnamed  American  publicist  as  Lord 
the  source  of  the  following  shrewd  observation  on  this  point : 
"So  long  as  the  debit  side  of  the  national  account  is  managed 
by  one  set  of  men,  and  the  credit  side  by  another  set,  both 
sets  working  separately  and  in  secret  without  public  re- 
sponsibility, and  without  intervention  on  the  part  of  the 
executive  official  who  is  nominally  responsible;  so  long  as 
these  sets,  being  composed  largely  of  new  men  every  two 
years,  give  no  attention  to  business  except  when  Congress 
is  in  session,  and  thus  spend  in  preparing  plans  the  whole 
time  which  ought  to  be  spent  in  public  discussion  of  plans 
already  matured,  so  that  an  immense  budget  is  rushed 
through  without  discussion  in  a  week  or  ten  days  —  just  so 
long  the  finances  will  go  from  bad  to  worse,  no  matter  by 
what  name  you  call  the  party  in  power.  No  other  nation 
on  earth  attempts  such  a  thing,  or  could  attempt  it  without 
soon  coming  to  grief,  our  salvation  thus  far  consisting  in  an 
enormous  income."  1 

The   second   feature  which   stands   out    prominently  in  The 
the  mechanism  of  national  expenditure  is  the  relatively  large 
power  of  the  Senate.     It  was  taken  for  granted  by  those  who  upper 
framed  the  constitution  that  the  House  of  Representatives  chamber 
would    "hold   the   purse/'    as   Madison   phrased   it.     But  financial 
the  actual  words  of  the  constitution  do  not  so  specify,  for 
they  give  the  Senate  equal  powers  with  the  House  in  all 
financial  matters  except  the  originating  of  bills  for  raising 
money.     There  is  nothing  in  the  constitution  which  requires 
that  bills  for  spending  money  shall  originate  in  the  House, 
although  by  custom  they  always  do  originate  there.     It 
was  expected  that  the  House  would  become  practically 
supreme  in  all  financial  matters  because  the  framers  of  the 
constitution  had  before  their  eyes  the  example  of  England, 
the  one  country  having  real  parliamentary  government  in 
1  American  Commonwealth,  i,  pp.  182-183. 


308      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  House 
was  in- 
tended to 
be  the 
dominant 
factor 
in  that 
field. 


But  it  has 
not  suc- 
ceeded in 
becoming 
such  by 
any  means. 


1787.  There,  without  any  formal  provision  of  law,  the 
House  of  Commons  had  acquired  a  complete  mastery  over 
both  revenue  and  expenditure. 

In  one  of  the  Federalist  letters  Madison  brought  his 
historical  knowledge  to  bear  on  this  point.  "Notwith- 
standing the  equal  authority  which  will  subsist  between 
the  two  Houses  on  all  legislative  subjects,  except  the  origi- 
nating of  money  bills,  it  cannot  be  doubted,"  he  declared, 
"that  the  House  .  .  .  will  have  no  small  advantage.  .  .  . 
The  House  of  Representatives  can  not  only  refuse,  but  they 
alone  can  propose,  the  supplies  requisite  for  the  support  of 
government.  They,  in  a  word,  hold  the  purse  —  that  power- 
ful instrument  by  which  we  behold,  in  the  history  of  the 
British  Constitution,  an  infant  and  humble  representation  of 
the  people  gradually  enlarging  the  sphere  of  its  activity  and 
importance,  and  finally  reducing,  as  far  as  it  seems  to  have 
wished,  all  the  overgrown  prerogatives  of  the  other  branches 
of  the  government.  This  power  over  the  purse  may,  in  fact, 
be  regarded  as  the  most  complete  and  effectual  weapon  with 
which  any  constitution  can  arm  the  immediate  representatives 
of  the  people,  for  obtaining  a  redress  of  every  grievance,  and 
for  carrying  into  effect  every  just  and  salutary  measure."  1 

No  expectation  of  the  Fathers  has  been  denied  realization 
to  a  greater  extent  than  this.  The  House  of  Representatives, 
unlike  the  House  of  Commons,  has  obtained  no  financial 
mastery.  Where  the  Senate  and  the  House  have  come  into 
conflict  upon  questions  either  of  revenue  or  expenditure 
the  Senate  in  nearly  every  case  has  had  its  way.  Instead 
of  becoming  the  dominant  chamber  the  House  has  hard 
work  to  maintain  its  place  as  a  coordinate  arm  of  the 
national  legislature.  It  has  never  gained  that  power  of 
the  purse  which  was  originally  regarded  as  its  peculiar 
prerogative.  Instead  of  being  strong  and  masterful  in  its 
relations  with  the  Senate,  as  was  anticipated,  the  House  has 
been  forced  on  numberless  occasions  to  take  refuge  in 
compromise.  The  fact  is  worth  remarking  that  in  the 
United  States,  almost  alone  among  the  world's  great 
nations,  the  lower  chamber  of  the  national  legislature  has 
failed  to  gain  control  of  the  national  pocket-book. 
1  The  Federalist,  No.  58. 


THE   WORKINGS  OF  CONGRESSIONAL  GOVERNMENT     309 

It  is  often  remarked  that  the  United  States  is  also  the  The  lack 
only  great  country  without  a  budget  system.  Whether  that  ^fionai 
saying  is  true  or  not  depends  upon  what  one  means  by  a  budget, 
budget.  If  a  budget  be  denned  as  "a  statement  of  probable 
revenue  and  expenditures  and  of  financial  proposals  for  the 
ensuing  year  as  presented  to  or  passed  by  a  legislative 
body/'  1  then  Congress  does  have  each  year  a  series  of  such 
statements  emanating  from  various  sources,  and  these  taken 
together  make  up  a  national  budget.  But  if  a  budget  be  de- 
fined as  "a  collection  of  documents  assembled  by  an  officer 
who  is  at  the  head  of  or  is  responsible  for  the  administra- 
tion and  submitted  to  the  legislative  branch  of  the  govern- 
ment." 2  then  the  United  States  does  not  have  a  national 
budget  system.  Some  of  the  documents  are  prepared  by 
the  executive  departments  under  the  President's,  direction; 
others  are  prepared  by  the  committees  of  the  House. 
Neither  the  executive  nor  the  legislative  branch  of  the  gov- 
ernment is  wholly  responsible  for  the  programme  of  ex- 
penditures. There  is  no  correlation,  moreover,  between 
those  committees  which  prepare  bills  for  raising  revenue 
and  those  which  prepare  the  appropriation  and  the  "omni- 
bus" bills.  If  the  expenditures  keep  within  the  income  it 
is  by  happy  accident  rather  than  by  careful  design. 

How  might  this  serious  defect  be  remedied  ?     One  change  Suggested 
would  certainly  be  of  advantage,  namely,  the  adoption  in  ^^g8 
both  the  House  and  the  Senate  of  a  standing  rule  providing  relating 
that  no  proposal  of  expenditure  should  be  in  order  unlessj 
recommended  by  the  executive  branch  of  the  government.! 
It  may  be  urged  that  such  a  provision  would  be  unworkable 
because   the   executive    and    legislative   branches    are    not 
always,    as   in   England,  harmonious   as  to   public  policy. 
In  reply  it  need  only  be  pointed  out  that  political  inharmony 
between   the   mayor   and   the    council   is    often   found    in 
American  municipal  government,  yet  the  provision  that  no 
appropriation  can  be  considered  by  the  city  council  unless 
it  is  recommended  by  the  mayor  has  been  inserted  with  good 

1  Boston  Budget  Commission's  Report  (1915),  p.  4. 

2  Report   of  the   President's   Commission   on   Economy  and   Efficiency. 
The   Need  for  a   National   Budget    (Washington,    1912.     62d  Congress, 
2d  Session,  House  Document  854),  p.  8. 


310      THE  GOVERNMENT  OF  THE  UNITED  STATES 


A  budget 
system 
recom- 
mended. 


Congress 
works  too 
hurriedly 


And  has 
too  much 
to  do. 


results  in  many  city  charters.  Congress  could  manage  its 
expenditures  under  the  operation  of  a  similar  rule  if  com- 
pelled to  do  so.  It  would  still  have  the  right  to  strike  out  or 
to  reduce  any  item,  but  not  to  insert  or  increase.  It  may 
be  of  interest  to  note  that  the  framers  of  the  short-lived 
constitution  for  the  Confederate  States  of  America  in  1861 
adopted  a  provision  of  this  nature.1 

Some  years  ago,  on  the  recommendation  of  President  Taft, 
Congress  authorized  the  appointment  of  a  special  com- 
mission to  examine  the  existing  methods  of  national  finance 
and  to  recommend  improvements.  This  commission,  after 
a  thorough  investigation,  recommended  the  establishment  of 
a  budget  system  under  which  all  estimates  for  the  year  would 
be  transmitted  to  Congress  by  the  President  in  a  single  list 
and  incorporated  into  one  great  appropriation  measure. 
Congress,  however,  did  not  take  kindly  to  this  proposal 
and  the  system  remains  as  before. 

Not  merely  in  the  matter  of  appropriations  but  in  the 
enactment  of  all  its  measures  the  great  handicap  upon 
Congress  is  the  perennial  need  for  haste.  The  first  and  in 
some  cases  the  only  object  of  its  multifarious  rules  is  to 
hurry  business  along.  Everything  else  is  subordinated  to 
the  problem  of  getting  things  out  of  the  way.  So  much  is 
each  year  laid  out  for  it  to  do  that  only  by  skimming  the 
surface  can  Congress  hope  to  do  its  work  at  all.  Legisla- 
tion is  never  an  easy  business  in  a  democracy  where  many 
discordant  voices  are  shrieking  their  desires  and  counsels 
at  the  same  time.  If  a  country  makes  up  its  mind  to  have  a 
government  of  laws  it  must  expect  a  plenitude  of  laws,  for 
it  takes  a  whole  volume  of  laws  to  do  what  one  administrative 
official,  with  sufficient  discretionary  authority,  could  per- 
form without  overworking  himself.  The  American  doctrine 
of  government  by  laws  alone  has  brought  in  its  train  the 
greatest  outpouring  of  statutes  that  the  world  has  ever 
seen.  Law  has  become  the  popular  panacea  for  all  political, 
social,  and  industrial  evils.  Congress  is  not  the  inspirer 

1  Art.  I,  Sec.  9.  "Congress  is  forbidden  to  appropriate  money  from 
the  treasury  except  by  a  vote  of  two-thirds  of  both  Houses,  unless  it  be 
asked  by  the  head  of  a  department  and  submitted  by  the  President,  or 
be  asked  for  the  payment  of  its  own  expenses,  or  of  claims  against  the 
Confederacy  declared  by  a  judicial  tribune  to  be  just." 


THE  WORKINGS  OF  CONGRESSIONAL  GOVERNMENT     311 

but  merely  the  reflection  of  this  national  eccentricity.  The 
enacting,  revising,  amending,  repealing  of  laws  has  become 
a  great  national  industry.  Statutes  fly  from  forty-nine 
legislative  capitals  in  the  United  States  like  sparks  from  so 
many  forges. 

Laws  beget  laws.  Give  a  statute  time  and  it  will  have  The 
its  own  progeny.  The  increase  is  like  that  of  micro- 
organisms,  by  geometrical  progression.  The  fathers  of 
the  Republic  foresaw  the  dangers  of  over-legislation  and 
desired  to  guard  against  it.  "It  will  be  of  little  avail  to  the 
people,"  wrote  one  of  them  in  the  Federalist,  "that  the 
laws  are  made  by  men  of  their  own  choice,  if  the  laws  be  so 
voluminous  that  they  cannot  be  read,  or  so  incoherent  that 
they  cannot  be  understood ;  if  they  be  repealed  or  revised 
before  they  are  promulgated,  or  undergo  such  incessant 
changes  that  no  man  who  knows  what  the  law  is  to-day  can 
guess  what  it  will  be  to-morrow." 

But  such  safeguards  as  the  constitution  provides  against 
law-making  en  gros  have  not  proved  effective.  The  chief 
shortcoming  of  Congress,  and  of  the  state  legislatures  as  well, 
is  the  sacrifice  of  quality  to  quantity  in  the  process  of  law- 
making. 


CHAPTER  XXII 


Opposition 
of  the 
founders 
to  the 
party 
system. 


POLITICAL   PARTIES    IN   NATIONAL   GOVERNMENT  I 
THEIR   HISTORY  AND   FUNCTIONS 

THE  history  of  political  parties  in  the  United  States 
began  with  the  constitutional  convention  of  1787,  yet  the 
men  who  made  the  constitution  were  not  believers  in  party 
government.  On  the  contrary  they  were  at  great  pains  to 
provide  a  scheme  of  government  which  would  be  free  from 
party  animosity  or  the  "violence  of  faction "  as  James 
Madison  expressed  it.1  This  attitude  of  Madison  and  his 
colleagues  was  quite  in  tune  with  the  eighteenth  century 
Whig  idea  of  government  which  regarded  parties  as  barnacles 
upon  the  ship  of  state  or  cancers  in  the  body  politic.  Before 
1787  no  English  political  writer  of  any  consequence  except 
Edmund  Burke  had  dared  to  defend  the  party  system,  and 
his  arguments  were  regarded  as  disingenuous  attempts  to 
gloss  over  the  iniquities  of  cabals  and  cliques.  The  fathers 
of  the  American  republic  chose  rather  the  political  gospel 
of  Bolingbroke  and  Chatham,  which  frowned  sternly  upon 
the  "pestilential  influence  of  party  animosities." 

1  "Among  the  numerous  advantages  promised  by  a  well  constructed 
union,  none  deserves  to  be  more  accurately  developed  than  its  tendency 
to  break  and  control  the  violence  of  faction.  .  .  .  By  a  faction  I  under- 
stand a  number  of  citizens,  whether  amounting  to  a  majority  or  a  minority 
of  the  whole,  who  are  united  and  actuated  by  some  common  impulse  of 
passion  or  of  interest,  adverse  to  the  rights  of  other  citizens,  or  to  the  per- 
manent and  aggregate  interests  of  the  community.  .  .  .  The  latent  causes 
of  faction  are  sown  in  the  nature  of  man ;  and  we  see  them  everywhere 
brought  into  different  degrees  of  activity,  according  to  the  different  cir- 
cumstances of  civil  society.  A  zeal  for  different  opinions  concerning  reli- 
gion, concerning  government,  and  many  other  points  .  .  . ;  an  attachment 
to  different  leaders  .  .  .  have  in  turn,  divided  mankind  into  parties,  in- 
flamed them  with  mutual  animosity,  and  rendered  them  much  more 
disposed  to  vex  and  oppress  each  other  than  to  co-operate  for  their  common 
good."  The  Federalist,  No.  10. 

312 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     313 

The  eighteenth   century  knew  little  of  the  practice  of  Yet 
free  government.     The  statesmen  of  the  period  could  not  are^n- 
foresee  that  political  parties  would  come  into  being  in  a  evitabie 
democracy  no  matter  what  constitutional  barriers  might  be  g^^J^6 
set  up  against  their  existence.     Give  any  people  the  right  ments. 
to  govern  themselves,  the  right  to  think  their  own  thoughts 
and  to  speak  their  minds  aloud,  and  political  parties  are 
inevitable.     The    political    experience    of    the    nineteenth 
century  was  to  prove  that  parties  will  come  and  flourish 
under  all  forms  of  popular  government,  that  they  are  an 
essential  of  sound  democracy  and  not  an  excrescence  upon 
it.     But  Madison  and  his  colleagues,  guided  by  the  relatively 
brief  history  of  political  parties  in  England  prior  to  1787, 
were  earnestly  concerned  to  keep  the  party  system  from 
getting  any  foothold  in  the  New 'Wo  rid.     How  futile  were 
their   endeavors   the   whole   history   of   American   politics 
can  now  attest.     The  stone  which  the  builders  rejected 
has  become  the  chief  corner-stone. 

The  abhorrence  of  party  divisions  continued,  for  a  time  Washing- 
at  least,  after  the  new  government  had  been  established,  antipathy 
Washington's  farewell  address  was  as  much  an  admonition  to  the 
against  party  divisions  within  the  Union  as  against 
permanent  alliances  outside.  "  In  the  most  solemn  manner/' 
the  first  of  the  presidents  warned  the  nation  "against  the 
baneful  effects  of  the  spirit  of  party  generally/'  and  pilloried 
it  as  the  worst  enemy  of  popular  government.1 

1  "I  have  already  intimated  to  you  the  danger  of  parties  in  the  state, 
with  particular  reference  to  the  founding  of  them  on  geographical  discrim- 
inations. Let  me  now  take  a  more  comprehensive  view,  and  warn  you 
in  the  most  solemn  manner  against  the  baneful  effects  of  the  spirit  of  party, 
generally.  ...  It  serves  always  to  distract  the  public  councils,  and 
enfeebles  the  public  administration.  It  agitates  the  community  with 
ill-founded  jealousies  and  false  alarms,  kindles  the  animosity  of  one  part 
against  another,  foments  occasional  riot  and  insurrection.  .  .  .  There  is 
an  opinion  'that  parties  in  free  countries  are  useful  checks  upon  the  admin- 
istration of  the  government,  and  serve  to  keep  alive  the  spirit  of  liberty 
This  within  certain  limits  is  probably  true  —  and  in  governments  of  a 
monarchical  cast,  patriotism  may  look  with  indulgence,  if  not  with  favour, 
upon  the  spirit  of  party.  But  in  those  of  the  popular  character,  in  govern- 
ments purely  elective,  it  is  a  spirit  not  to  be  encouraged.  ...  A  fire 
not  to  be  quenched  ;  it  demands  a  uniform  vigilance  to  prevent  its  bursting 
into  a  flame,  lest,  instead  of  warming,  it  should  consume."  "Farewell 
Address"  (Writings  of  Washington,  edited  by  L.  B.  Evans,  N.  Y.,  1908), 
p.  539. 


314      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  begin- 
nings of 
American 
political 
parties. 


There  were 
party 
groups 
even  in 
the  con- 
stitutional 
convention. 


The 

Federalists 
and  Anti- 
Federalists. 


Yet  although  there  existed  in  high  places  this  animosity 
to  political  parties  in  the  closing  decade  of  the  eighteenth 
century  it  was  then,  nevertheless,  that  American  political 
parties  came  into  being.  The  members  of  the  constitutional 
convention  were  themselves  aligned  into  two  political 
parties.  They  did  not  realize  it,  of  course,  and  would  have 
resented  the  imputation ;  but  to  any  one  who  follows  their 
daily  deliberations  the  fact  is  readily  discernible.  From  the 
very  outset  of  their  deliberations  the  delegates  divided 
themselves  broadly  into  two  groups  on  questions  of  general 
policy.  There  were  those  who  believed  in  a  real  union, 
who  wanted  to  subordinate  the  states  to  the  nation,  to 
bestow  large  powers  upon  the  central  government.  These 
were  the  Federalists.  On  the  other  hand  there  were  dele- 
gates, and  they  formed  a  minority,  who  desired  that  no 
power  should  go  to  the  central  government  if  it  could  be 
safely  left  to  the  several  states.  They  believed  that  the 
central  government  should  care  for  the  common  defence 
and  such  other  things  as  could  not  be  handled  by  the  states 
acting  separately.  These  were  the  Anti-Federalists.  Ameri- 
can political  parties  began  with  federalism  and  anti- 
federalism,  with  Edmund  Randolph  and  William  Paterson 
leading  the  delegates  into  two  groups  on  the  first  great  ques- 
tion that  came  before  the  convention.  They  crystallized 
into  permament  form  when  Alexander  Hamilton  lined  up 
one  half  the  country  against  Thomas  Jefferson  and  the 
other  half,  during  Washington's  first  administration. 

It  may  be  contended,  of  course,  that  political  divisions  in 
the  New  World  antedated  even  the  framing  of  the  constitu- 
tion.1 In  a  sense  that  is  true.  There  were  Whigs  and  Tories 
in  colonial  days :  there  were  Whigs  and  Tories  during  the 
Revolution.  But  between  these  analogues  of  the  great 
English  parties  and  the  new  divisions  based  upon  federal- 
ism and  its  antithesis,  there  is  no  close  connection.  Nor, 
indeed,  is  there  any  close  continuity  between  these  new 
divisions  and  the  American  political  parties  of  to-day.  The 

1  "You  say  our  divisions  began  with  federalism  and  anti-federalism! 
Alas !  they  began  with  human  nature ;  they  have  existed  in  America 
from  its  first  plantation.  In  every  colony,  divisions  always  prevailed." 
John  Adams,  Works  (10  vols.,  Boston,  1850-1856),  x,  pp.  22-23. 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     315 

Republican  party,  when  first  organized,  drew  from  both 
Federalists  and  Anti-Federalists  and  it,  in  turn,  became  the 
progenitor  of  both  our  present  great  parties.  In  the  history 
of  American  political  parties  this  exchange  of  names  is  a 
confusing  factor.1 

During  the  early  years  of  the  Union  the  Federalists,  The  Fed- 
under  the  leadership  of  Alexander  Hamilton,  gained  the  ^the* 
upper  hand.  The  reaction  against  the  weaknesses  of  the  saddle, 
old  confederation  ran  strongly  in  the  minds  of  the  people  1789  |00< 
and  they  were  willing  to  have  the  central  government  gain 
in  strength.  The  excesses  of  the  French  Revolution 
(1789-1802)  likewise  disposed  many  sober-minded  Americans 
to  place  more  emphasis  on  order  and  authority  than  upon 
the  natural  liberty  of  states  or  individuals.  Washington 
was  not  a  party  man.  He  was  elected  without  opposition 
and  showed  his  sincerity  as  a  non-partisan  by  choosing  his 
Cabinet  from  both  political  groups.  Hamilton  and  Jefferson, 
therefore,  were  members  of  his  first  official  family.  But 
while  Washington  was  neither  by  temperament  nor  by 
training  a  party  President,  he  gravitated  steadily  towards 
the  Federalist  point  of  view.  During  the  eight  years  of  his 
administration  the  first  United  States  Bank  was  established ; 
the  first  tariff  on  imports  was  framed ;  the  national  credit 
was  put  upon  a  firm  basis  and  a  system  of  taxation  created. 
Provision,  likewise,  was  made  for  taking  over  and  paying 
off  the  debts  incurred  by  the  various  states  in  the  Revolution. 
In  all  these  things  the  handiwork  of  Hamilton,  the  Federalist 
leader,  was  made  manifest. 

This  rapid  centralization  of  functions,  however,  aroused 
strong  opposition,  particularly  among  that  part  of  the  pop- 
ulation which  had  no  important  financial  or  commercial  con- 
nections. To  the  farmers  in  most  of  the  states  the  national 
policy  looked  like  a  surrender  to  the  moneyed  and  shipping 
interests.  Jefferson,  whose  antagonism  to  the  Federalist 
attitude  was  not  concealed  even  while  he  was  a  member 
of  the  Cabinet,  came  to  be  recognized  as  the  champion  of 

1  For  the  history  of  American  parties,  see  Henry  J.  Ford,  Rise  and 
Growth  of  American  Politics  (N.  Y.,  1898),  and  J.  A.  Woodburn,  Political 
Parties  and  Party  Problems  (N.  Y.,  1903),  also  the  references  given  below, 
p.  330,  note. 


316      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Their 
disunion 
under 
Adams. 


The  Jeffer- 
sonian 
victory  of 
1800. 


the  opposition,  and  his  followers  adopted  for  themselves  the 
name  of  Republicans  or  Democratic-Republicans.  Their 
strength  among  the  people  soon  increased,  and  at  the  elec- 
tion of  1796  they  almost  defeated  John  Adams,  the  Fed- 
eralist candidate  for  the  presidency. 

The  administration  of  John  Adams  gave  the  opposition 
a  chance  to  make  headway  owing  to  the  divided  leadership 
of  the  Federalists.  Hamilton,  the  most  brilliant  spirit  in 
the  ranks  of  the  latter  party,  did  not  manage  to  work  in 
harmony  with  Adams.  The  two  were  not  alike  in  tempera- 
ment or  ways,  and  their  relations  ended  in  an  open  breach. 
By  their  support  of  the  Alien  and  Sedition  Acts  (1798), 
moreover,  the  Federalists  made  a  serious  .error,  giving 
Jefferson  and  his  friends  a  fine  opportunity  to  make  politi- 
cal capital.  The  country  rang  with  the  clamor  of  the 
Republicans  that  these  measures  were  designed  to  buttress 
the  falling  fortunes  of  the  Federalist  party  by  repressing 
freedom  of  speech  and  stifling  criticism.  Every  prosecution 
under  these  laws  provided  occasion  for  a  demonstration 
against  the  Federalists.  The  result  was  that  at  the  election 
of  1800  Jefferson  was  triumphantly  returned  and  the 
Democratic-Republicans  assumed  control  of  the  national 
government.  Before  the  close  of  his  administration,  how- 
ever, Adams  succeeded  in  clinching  for  many  years  the  hold 
of  the  Federalists  upon  one  department  of  the  government. 
This  he  did  when  he  appointed  John  Marshall  to  be  Chief 
Justice  of  the  Supreme  Court. 

The  election  of  1800  disclosed  for  the  first  time  a  definite 
political  alignment  not  only  among  the  leaders  but  among 
the  people.  The  agricultural  population  of  the  country,  the 
small  farmers  of  the  North  and  the  planters  of  the  South, 
supported  Jefferson.  The  industrial  and  the  trading  in- 
terests, the  seaboard  towns  and  the  Puritan  strongholds  of 
New  England,  were  behind  Adams.  The  change  from 
Adams  to  Jefferson  was,  therefore,  a  turnover  of  great 
political  significance.  The  Federalists  had  been  con- 
servative, aristocratic,  even  reactionary.  They  had  clung 
with  great  tenacity  to  theories  of  government  which  placed 
more  emphasis  upon  order  than  upon  liberty.  They  strove 
to  make  the  central  government  a  real  power  in  the  land, 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     317 

construing  in  a  broad  way  trie  powers  granted  to  Con- 
gress by  the  constitution.  Jefferson  and  his  Democratic- 
Republican  followers,  on  the  other  hand,  professed  those  Supremacy 
theories  of  government  which  laid  stress  upon  the  natural  ^{^canT 
liberty  of  the  citizen.  They  asserted  that  the  provisions  isoo-1824. 
of  the  constitution  which  gave  powers  to  the  federal  govern- 
ment should  be  strictly  construed.  They  were  partisans  of 
state  rights  and  gave  their  allegiance  to  what  they  liked  to 
call  "democratic  principles."  Yet  they  did  not,  after  their 
accession  to  power,  throw  overboard  what  the  Federalists  had 
acquired  for  the  new  government.  They  continued  the  pro- 
tective tariff,  established  another  United  States  Bank,  and 
in  the  purchase  of  the  Louisiana  Territory  gave  the  broadest 
possible  interpretation  to  the  powers  of  the  national  govern- 
ment. The  Alien  and  Sedition  laws  were  allowed  to  lapse ; 
but  the  Embargo  Act  which  shut  off  American  commerce  with 
Europe(l807),  and  the  methods  used  in  its  enforcement  consti- 
tuted quite  as  great  an  interference  with  individual  liberty. 

Jefferson  remained  strong,  however,  in  the  confidence  of  Disintegra- 
the  people,  as  his  reelection  proved  in  1804,  and  he  was  able  Federalists 
to  pass  on  the  presidency  to  his  disciple,  Madison,  at  the 
close  of  his  second  term  in  1809.     During  the  two  adminis- 
trations of  Madison  the  Federalist  party  still  further  dis- 
integrated, and  at  the  election  of  1820  placed  no  candidate 
before  the  people.     The  Republicans  with  the  election  of 
James    Monroe  in    1820  were   in    complete    control,  their 
candidate  having  carried  every  state  in  the  Union.1     The 
Federalist  party  went  out  of  existence. 

But  no  one  party  can  long  remain  in  sole  control  of  any  The  party 
free  government.     A  majority  party,  no  matter  how  strong,  chaos  of 
has  within  itself  the  germs  of  decay.     The  more  pronounced 
its  ascendency,  in  fact,  the  more  quickly  is  it  apt  to  relax 
its  vigilance  and  to  afford  opportunities  for  disintegrating 
forces  to  do  their  work.     Signs  of  disunion  promptly  showed 

1  One  elector  from  New  Hampshire  gave  his  vote  for  John  Quincy 
Adams  for  President,  and  thus  deprived  Monroe  of  the  honor  of  a  unani- 
mous election.  It  has  been  frequently  said  that  this  recalcitrant  elector 
did  so  in  order  to  prevent  any  one  else  from  sharing  with  Washington  the 
honor  of  a  unanimous  choice ;  but  this  statement  is  not  true.  The  elector 
had  other  reasons  for  his  action.  See  Edward  Stan  wood,  A  History  of 
the  Presidency  (2d  ed.,  2  vols.,  Boston,  1916),  i,  p.  118. 


318      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Evolution 
of  the 
new 
parties. 


The 

election  of 
Jackson 
and  the 
era  of 

Democratic 
supremacy, 
1828-1844. 


themselves  among  the  Republicans.  Before  long  the  party 
divided  itself  into  various  factions  which  eventually  coalesced 
into  two  prominent  groups,  one  of  them  led  by  John  Quincy 
Adams,  Daniel  Webster,  and  Henry  Clay,  the  other  by 
Andrew  Jackson  and  John  C.  Calhoun.  But  before  this 
consolidation  was  accomplished  the  country  was  compelled 
to  pass  through  ten  years  of  personal  and  factional  poli- 
tics. During  these  years  it  seemed  impossible  to  restore  the 
popular  alignment  into  two  great  divisions,  and  at  the 
election  of  1824  there  were  four  candidates  for  the  presi- 
dency, Jackson,  John  Quincy  Adams,  Crawford,  and  Clay. 
No  one  of  these  obtained  a  majority  of  the  electoral  vote, 
and  the  choice  of  Adams  was  made  by  Congress.  Thus 
ended  the  rule  of  the  Virginia  dynasty. 

The  new  administration  began  its  work  in  a  whirl  of 
charges  and  recriminations.  Rumors  of  corrupt  and  under- 
hand dealings  were  in  the  air.  Congress  was  hostile  to 
Adams  and  his  administrative  plans  frequently  missed  fire. 
The  factional  bickerings  seemed  interminable.  By  1828, 
however,  the  various  groups  had  consolidated.  The  more 
nationalistic  factions,  now  known  as  the  National 
Republicans,  in  that  year  supported  Adams  for  reelection ; 
while  the  more  radical  elements  of  the  old  Republican  party, 
taking  the  name  Democrats,  supported  and  secured  the 
election  of  Andrew  Jackson. 

"The  election  of  General  Jackson  to  the  presidency," 
says  Professor  Channing,  "was  the  most  important  event 
in  the  history  of  the  United  States  between  the  election  of 
Jefferson  in  1800  and  that  of  Lincoln  sixty  years  later. 
Madison,  Monroe,  and  John  Quincy  Adams  belonged  to 
the  Jeffersonian  school  of  statesmen  who,  while  holding 
liberal  views,  yet  represented  in  their  education  and  habits 
of  thought  the  older  and  more  courtly  type  of  which  Wash- 
ington was  the  most  conspicuous  example.  Jackson,  on 
the  other  hand,  was  an  indigenous  product  of  the  American 
soil.  Vigorous  and  absolutely  without  fear,  he  was  a 
born  leader  of  men.  The  Jeffersonian  theory  aimed  rather 
at  the  establishment  of  state  democracies,  while  Jackson's 
mission  was  the  founding  of  a  national  democracy." 
1  The  United  States,  1765-1865  (New  York,  1896),  p.  208. 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     319 

The  election  of  Jackson,  at  any  rate,  is  a  great  landmark 
in  the  history  of  American  political  parties.  His  views  and 
policies  were  forceful ;  they  made  him  warm  friends  and 
bitter  enemies ;  and  they  accentuated  the  division  of  the 
people  into  two  great  parties,  Whigs  and  Democrats.1 
Jackson's  extension  of  the  spoils  system  promoted  the 
efficiency  of  party  organization  by  giving  his  party  followers 
something  tangible  to  fight  for.  But  even  more  important 
was  his  successful  fight  to  break  up  the  congressional  caucus 
as  a  machine  for  nominating  presidential  candidates,  thus 
paving  the  way  for  the  rise  of  the  national  party  conventions. 

The  Democrats  continued  to  hold  power  until  the  inau- 
guration of  1841,  having  reflected  Jackson   in    1832   and 
secured  the  choice  of  Van  Buren  in  1836.     Then  commenced  The  aiter- 
an  era  of  party  alternation  in  office.     The  issue  of  slavery  ancTreor- 
began  more  and  more  to  dominate  the  political  arena,  and  in  gamzations 
the  end  it  managed  to  split   both  the  Whig  and  Demo-  °^® 
cratic  parties  asunder.     During  the  middle  fifties  the  new  1844-1860. 
Republican  party  arose  out  of  the  ruins  of  the  old  Whig 
alignment  and  secured  the  election  of  Lincoln  over  a  divided 
opposition  in  1860.     This  election  ushered  in  a  period  of 
Republican  supremacy  which  lasted  for  twenty-four  years, 
from  1861  to  1885. 

The  Civil  War,  while  it  lasted,  drew  into  the  Republican  The  effect 
ranks  all  those  who  believed  in  "the  unconditional   mainte-  °f.^j]e 
nance  of  the  Union,  the  supremacy  of  the  constitution,  War  on 
and  the  complete  suppression  of  the  existing  rebellion  with 
the  cause  thereof  by  all  apt  and  efficient  means."     It  was 
by  appealing  to  the  voters  on  this  programme  that  the 
Republicans   reflected   Lincoln   in    1864.      When  the  war 
ended  it  left  the    Republican   party    strongly   intrenched. 
Then  intervened  the  difficult  tasks  of  reconstruction  which 
kept  sectional  bitterness  alive,  and  it  was  not  until  the  end 
of  Grant's  second  term  (1877)  that  the  two  great  parties 
began  to  align  themselves  upon  present  rather  than  upon 
past  issues. 

One  of  the  legacies  of  the  war  was  a  high  tariff,  and  the 
continuance  of  a  protective  policy  during  the  later  sixties 

TThe  Whig  party  was  organized  in  1834  by  a  combination  of  the 
National  Republicans  with  one  faction  of  former  Democrats. 


320      THE  GOVERNMENT  OF  THE  UNITED  STATES 

Alliance        and  seventies  drew  to  the  Republicans  the  support  of  the 
large  business  interests  of  the  country.     The  questions  of 


cans  finance  and  currency  which  came  to  the  front  during  this 

business        period  had  a  similar  influence,  the  Republicans  handling 
interests.       these  matters  in  a  way  to  draw  the  support  of  those  who 
had  most  to  gain  from  conservative  financial  legislation. 
The  Democrats,  on  the  other  hand,  made  their  appeal  to  the 
friends  of  tariff  reduction,  to  the  agricultural  voters  of  the 
South,  to  those  who  had  radical  views  on  matters  of  finance 
and    currency.     Grant,    Hayes,    and   Garfield  successively 
carried  the  Republican  standard  to  victory  during  these  years 
when  questions  relating  to  the  tariff  and  the  currency  were 
The  the  great  issues.     It  was  not  until  the  election  of  1884  that 

^e  RePuklican  hold  upon  the  presidency  was  relaxed,  and 
the  triumph  of  Grover  Cleveland  in  that  year  was  due  as 
much  to  the  lack  of  €Lan  among  his  opponents  as  to  the 
strength  of  his  own  party. 

At  each  of  the  next  four  elections  the  tariff  continued  to 
be  a  prime  issue,  although  the  Democratic  adoption  of  a  free- 
silver  programme  in  1896  thrust  the  question  of  bimetallism 
for  the  moment  into  the  foreground.  Until  1912,  in  fact,  the 
Recent  cleavage  between  the  parties  remained  tolerably  clear,  and  it 
vefopments  related  more  directly  to  the  tariff  than  to  any  other  issue. 
In  that  year  came  a  schism  in  the  Republican  ranks,  a 
revolt  against  the  alleged  reactionary  methods  and  tenden- 
cies of  its  leaders,  with  the  resulting  formation  of  the  short- 
lived Progressive  party.  This  division  in  the  Republican 
ranks  made  certain  the  success  of  the  Democrats  in  the 
election  of  that  year.  By  1916  this  breach  had  been  to  a 
large  extent  healed,  but  the  issues  between  the  Democrats 
and  the  reunited  Republicans  were  no  longer  so  clearly 
marked  out  as  in  the  years  before  the  Progressive  in- 
surrection. The  tariff  dropped  out  of  public  discussion 
and  there  were  no  currency  questions  in  controversy.  The 
relation  of  the  United  States  to  the  great  war  which  for 
two  years  had  been  raging  in  Europe  was  the  chief  problem 
in  the  minds  of  the  people.  It  was  upon  the  presumed 
attitude  of  the  candidates  with  reference  to  this  question 
and  not  upon  issues  of  old-style  domestic  policy  that  the 
election  turned.  The  margin  of  Democratic  victory  Wc*s  so 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     321 

narrow  that  a  change  of  fewer  than  two  thousand  votes  in 
what  turned  out  to  be  a  pivotal  state  would  have  altered 
the  outcome. 

This  rather  curious  and  complicated  history  of  political  Summary 
parties  in  the  United  States  may  be  marked  off,  by  way  of  £istoryy 
summary,  into  three  periods.     The  first  extends  from  1787  First  period: 
to  1820,  an  era  in  which  the  Federalists  and  the  Democratic-  1787-1820- 
Republicans,     the    exponents    of    national    centralization 
and  of  state  rights  respectively,  aligned  the  people  into  two 
well-marked  political  groups.  "Until   1800  the  Federalists 
maintained  their  hold ;    then  with  the  election  of  Jefferson 
their  opponents  began  their  march  to  a  position  of  supremacy 
which  in  time  caused  the  Federalists  to  disappear  as  a  party 
altogether. 

The  second  period  extends  from  about  1820  to  1860.  It  Second 
was  marked  by  a  succession  of  party  crumblings  and  new 
integrations.  First  came  the  break-up  of  the  old  Demo- 
cratic-Republican organization  into  groups  of  which  some 
eventually  united  to  form  the  Democratic  party  under 
the  leadership  of  Andrew  Jackson,  while  the  others  consoli- 
dated into  the  Whig  party  under  the  leadership  of  Adams, 
Webster,  and  Clay.  Then,  in  due  course,  ensued  the 
disruption  of  the  Whigs  in  the  campaign  of  1856  and  the 
rise  of  the  new  Republican  party,  followed  in  turn  by  the 
disruption  of  the  Democrats  in  1860. 

The  third  period  covers  the  years  since  the  Civil  War.  Third 
During  that  time  the  alignment  of  Republicans  and  Demo- 
crats,  save  for  temporary  defections,  has  been  reasonably 
well  preserved.  These  two  great  parties,  since.  1860, 
have  had  a  longer  and  more  intelligible  history  than  any 
of  their  predecessors.  It  is  during  this  period,  moreover, 
that  in  addition  to  the  regular  political  parties,  various 
other  organizations  based  upon  social  or  economic  principles 
have  come  into  the  field  and  have  managed  to  continue 
their  existence  over  considerable  periods  of  time. 

Two  of  these  minor  parties  deserve  mention  in  even  the  The  Pro- 
briefest    outline    of   party   history.     One    of   them   is    the 
Prohibition  party,  which  held  its  first  national  convention  in 
1872.     Its  fundamental  principle,  as  its  name  implies,- 'is 
opposition   to   the   manufacture    and   sale   of   intoxicating 


322      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

Socialist 

party. 


Its 
platform. 


Definition 
of  a 

political 
party. 


liquors,  but  in  recent  years  the  party  platform  has  expressed 
itself  on  various  other  issues  as  well.  The  Prohibition 
party  regularly  nominates  its  candidates  for  President 
and  Vice-President .  Although  at  times  a  considerable 
popular  vote  has  been  polled  for  these  candidates  (more 
than  a  quarter  of  a  million  on  one  occasion),  the  party 
has  never  yet  secured  a  single  vote  in  the  electoral 
college. 

The  Socialist  party  in  the  United  States  virtually  began 
its  career  as  a  national  party  in  1900,  although  for  some 
years  previous  to  that  date  a  Socialist-Labor  and  a  Social- 
Democratic  party  had  been  in  existence.  The  Socialist 
party  of  to-day  is  the  result  of  the  union  of  these  two  earlier 
organizations,  although  a  Socialist-Labor  party  still  continues 
in  the  field.  Its  platform  calls  for  both  economic  and 
political  reforms.  Among  the  economic  demands  are  the 
public  ownership  of  railroads,  telegraphs  and  telephones, 
the  extension  of  state  ownership  to  mines,  forests,  and  other 
natural  resources,  the  socialization  of  industry,  the  provision 
of  work  for  the  unemployed,  and  the  establishment  of 
pensions  for  the  aged.  Among  the  political  reforms  which 
the  party  desires  are  equal  suffrage,  the  initiative  and 
referendum,  the  abolition  of  the  United  States  Senate, 
the  popular  election  of  all  judges  for  short  terms,  and  the 
abolition  of  the  Supreme  Court's  power  to  declare  laws 
unconstitutional.  At  the  presidential  election  of  1912  the 
Socialist  candidate  polled  a  popular  vote  of  more  than  eight 
hundred  thousand,  but  in  1916  the  total  dropped  to  six 
hundred  thousand.  The  party  organization  includes  all 
members  who  pay  small  monthly  fees,  such  funds  as  are 
needed  for  election  campaigns  and  for  propaganda  being 
obtained  in  this  way. 

It  is  sometimes  said  that  the  genius  of  a  nation  for 
self-government  can  be  best  judged  by  a  study  of  its  political 
parties.  The  strength  of  parties  is  an  index  of  popular 
interest  in  public  affairs ;  their  weakness  and  disintegration 
is  a  sign  of  a  political  indifference  among  the  people.  What, 
after  all,  is  a  political  party?  Edmund  Burke  defined  a 
p'olitical  party  as  "a  body  of  men  united  for  the  purpose  of 
promoting  by  their  joint  endeavors  the  national  interest 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     323 

upon  some  particular  principle  on  which  they  are  all  agreed." 
That  is,  at  any  rate,  a  good  definition  of  what  a  political 
party  ought  to  be. 

Political  parties,  in  short,  are  groups  made  up  of  voters  Parties 
who  profess  to  think  alike  on  public  questions.  Their 
aim  is  to  promote  the  success  of  those  policies  and  methods  and 
in  which  they  believe.  They  are  a  perfectly  natural  out- 
come  of  the  fact  that  all  people  do  not  think  alike  nor  yet  govem- 
do  they  all  think  differently.  Left  to  themselves  they  will  ment' 
gravitate  into  political  groups  joist  as  people  range  them- 
selves as  the  result  of  passive  inheritance  or  active  choice 
into  various  sects  or  denominations  in  matters  of  religious 
belief.  Parties  are,  in  fact,  the  denominations  or  sects  of 
statecraft.  Most  people  inherit  their  political  as  well  as 
their  religious  beliefs,  although  in  the  one  field  as  in  the  other 
there  may  be  defections  due  to  the  influence  of  environment 
or  propaganda. 

If  all  people  thought  alike  on  political  questions  we  could 
have  no  political  parties ;  if  every  man  thought  differently 
from  his  fellows  we  could  have  no  parties,  for  every  voter 
would  then  be  a  political  party  unto  himself.  The  politi- 
cal party  is  therefore  a  logical  phenomenon  in  all  forms  of 
government,  except  in  a  despotism  on  the  one  hand  or  an 
anarchy  on  the  other.  Their  existence  is  the  outcome  of  a 
trait  which  is  characteristic  of  free  men  everywhere.  John 
Adams  was  right,  in  a  sense,  when  he  declared  that  parties 
began  with  human  nature.  The  desire,  if  not  the  opportunity, 
for  group-expression  is  primeval.  No  country  has  ever  been 
able  to  maintain,  over  considerable  periods  of  time,  any  form 
of  responsible  government  without  the  aid  of  political  parties. 
And  it  is  safe  to  prophesy  that  no  country  ever  will. 

Yet  essential  as  political  parties  are  to  the  proper  work-  But  they 
ings  of  government  in  all  democratic  countries,  they  have  {j^^* 
been  compelled  to  grow  up  without  much  nursing  from  con-  recognized, 
stitutions   or   laws.     The   latter   have    either   ignored   the 
existence  of  political  parties  altogether  or  have  sought  to 
hold    them    in    check   by   regulatory  provisions.     Parties, 
whether  in    England,  France,   or  America,   are  extra-con- 
stitutional institutions,  not  formally  recognized  as  having 
any  influence  upon  the  actions  of  the  government.     Neither 


324      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  func- 
tions of 
political 
parties : 
1.  To 
select 
public 
issues  and 
present 
them  to 
the 
electorate. 


Importance 
of  this 
function. 


parliament  nor  Congress  has  ever  admitted  that  any  political 
organization  is  entitled  to  delineate  its  policies  or  deter- 
mine the  obligations  of  its  members.  Yet  every  careful 
observer  is  well  aware  of  the  dominating  influence  exerted 
by  party  platforms,  party  discipline,  and  party  allegiance 
in  both  these  great  legislative  bodies. 

What  are  the  functions  of  a  political  party?  In  general 
a  party  has  three  functions.  In  the  first  place  it  singles  out 
and  frames  political  issues  for  presentation  to  the  public. 
Such  issues  come  to  the.  front  gradually  and  do  not,  as  a  rule, 
assume  at  the  outset  a  very  definite  form.  By  means  of 
the  party  platforms  various  major  and  minor  issues  are 
succinctly  stated  and  the  attitude  of  the  party  upon  each  of 
them  is  made  a  matter  of  record.  "We  believe  in  the 
adoption  of  a  non-contributory  old-age  pension  system," 
may  be  a  plank  in  the  platform  of  one  party.  "We  view 
with  alarm  the  proposal  to  spend  large  sums  of  public 
money  in  old-age  pensions  except  upon  a  contributory  basis," 
the  platform  of  the  other  party  may  make  reply.  Party 
assertions  of  this  type  put  questions  of  public  policy  squarely 
before  the  voter.  Indeed,  it  may  well  be  said  that  in  order 
to  get  any  important  principle  of  public  policy  transformed 
into  legislation  the  first  step  is  to  have  it  enunciated,  in  one 
or  both  of  the  party  platforms. 

An  election  under  the  party  system  is  therefore  not  merely  a 
means  of  choosing  candidates  but  a  referendum  to  the  people 
of  the  various  matters  contained  in  the  platforms  upon 
which  the  respective  candidates  stand.  The  specific  political 
views  of  men  range  over  a  wide  area ;  but  in  a  democracy 
they  must  be  willing  to  make  sacrifices  of  individual  opinion 
to  reach  common  ground.  A  democracy  of  irreconcilables, 
of  men  who  would  not  sacrifice  to  reach  common  ground, 
could  not  long  endure.  It  is  the  function  of  party  organi- 
zations to  find  that  common  ground  which  will  attract 
the  greatest  number  of  individual  preferences  among  the 
voters.  Or  to  express  it  in  another  way :  the  function  of 
preparing  a  political  creed  upon  which  large  numbers  of  men 
can  substantially  agree,  a  creed  made  up  by  selecting  those 
aspirations  which  are  uppermost  in  the  minds  of  the  people 
and  embodying  them  in  a  programme — that  is  the  first  func- 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     325 

tion  of  a  political  party.  It  is  a  duty  that  needs  to  be 
performed  in  every  well-governed  country,  yet  it  is  difficult 
to  see  how,  in  the  absence  of  political  parties,  it  would  be 
performed  at  all.  The  political  party,  by  its  performance 
of  this  function,  enables  men  to  act  in  masses. 

It  is  quite  true,  of  course,  that  political  parties  do  not  Although  it 
always  perform  with  frankness  and  simplicity  this  work  of  Sw£ys 
delineating  the  issues.       Sometimes  their  platforms  present  well 
questions  to  the  people  in  a  bewildering  or  evasive  form.  Performed- 
Sometimes,  again,  they  dress  up  the  party's  principles  in 
resounding  platitudes  which  may  mean  anything  or  nothing 
at  all.     At  times  the  platforms  evade  important  issues  or 
straddle  them,  as  in  1892,  when  neither  of  the  great  parties 
ventured  to  take  an  unambiguous  stand  on  the  free  silver 
question.     But  on  the  whole  the  main  issues  at  each  election 
are  made  fairly  clear,  and  certainly  they  are  much  less 
obscure  than  if  there  were  no  party  platforms  at  all. 

In  the  second  place,  it  is  the  function  of  political  parties  2.  TO 
to  provide  a  system  of  collective  and  continuing  responsi-  ^collective 
bility.     Responsibility,  to  be  real,  must  be  both  collective  andcon- 
and  continuing.     The  mere  fact  that  individual  officers  of  pon^i 
government  are  responsible  to  the  people  does  not  guarantee  responsi- 
a    responsible    government.     They    must    be    collectively  l 
responsible,  and  to  this  end  there  must  be  some  group  or 
organization  which  stands  sponsor,  shouldering  the  responsi- 
bility for  what  they  do.     As  a  penalty  for  inefficiency  and  a 
deterrent  to  any  repetition  of  it,  the  mere  turning  of  an 
officer  out  of  his  post  when  his  term  has  expired  avails  but 
little.     The  penalty,  to  be  effective,  must  also  fall  on  his 
bondsmen,  that  is,  upon  the  political  party  which  by  nomi- 
nating him  vouched  for  his  fitness. 

The  party  thus  serves  as  a  guarantor,  pledging  its  own 
interests  and  reputation,  at  times  staking  even  its  existence 
upon  the  ability  and  integrity  of  the  men  whom  it  places  in 
nomination  for  public  office.  If  its  candidates  are  elected 
and  make  good,  the  party  gets  the  credit ;  if  they  are  elected 
and  fail,  the  party  cannot  evade  the  responsibility.  The 
Democratic  party  was  still  carrying  the  responsibility  for 
having  placed  James  Buchanan  in  the  presidential  office, 
the  Republican  party  was  still  reaping  the  credit  of  having 


326   THE  GOVERNMENT  OF  THE  UNITED  STATES 

made  Abraham  Lincoln  his  successor,  long  after  both  these 
men  were  in  their  graves.  It  is  a  rare  Republican  platform 
in  our  own  day,  indeed,  which  does  not  seek  in  some  ingenuous 
way  to  remind  the  electorate  of  the  great  service  which  that 
party  rendered  the  nation  at  the  memorable  convention  of 
1860.  Democratic  platforms,  for  their  part,  as  seldom  fail 
to  pay  homage  to  the  principles  and  policies  of  Thomas 
Jefferson.  In  a  word  the  party  system  makes  for  organic 
as  well  as  personal  responsibility,  establishing  an  accounta- 
bility which  is  real,  continuing,  and  effective,  serving  as  the 
guarantors  of  all  who  enter  public  office  as  party  nominees. 
Without  parties  the  responsibility  would  go  no  farther  than 
the  office-holder  himself,  and  it  would  end  with  the  expiry 
of  his  term. 

3.  TO  Finally,  the  political  parties  assist  the  practical  workings 

{Tencies  °^  P°Pular  government.  A  democracy  is  ever  subject  to 
of  civic  the  danger  of  popular  indifference,  yet  eternal  vigilance  is 
jducation.  indispensable  to  its  success.  The  education  of  the  voter 
on  political  questions,  the  awakening  of  his  interest,  the 
promotion  of  political  discussion,  are  essentials  in  any  democ- 
racy which  seeks  to  be  worthy  of  its  name.  The  kinship 
of  democracy  is  with  knowledge,  straight-thinking,  and  in- 
telligence, not  with  ignorance  of  public  affairs,  apathy,  or 
the  blind  following  of  individual  prejudice  or  caprice.  If 
every  voter  were  left  to  inform  himself  on  political  questions 
and  to  vote  without  either  guidance  or  leadership,  no  demo- 
cratic scheme  of  government  would  survive.  A  government 
will  not  long  remain  popular  in  the  true  sense  if  public  issues 
do  not  at  all  seasons  occupy  a  place  in  the  minds  of  its  people. 
The  political  parties  perform  great  services  in  the  field 
of  political  education.*  They  stimulate  discussion,  fill  the 
newspapers  with  their  controversies,  attract  the  attention 
of  the  people  by  their  rallies,  parades,  and  demonstrations, 
deluge  the  voter  with  their  circulars  and  harry  him  to  the 
polls  on  election  day.  "If  all  men  took  a  keen  interest  in 
public  affairs,  studied  them  laboriously,  and  met  constantly 
in  a  popular  assembly  where  they  were  debated  and  decided, 
there  would  be  no  need  of  other  agencies  to  draw  attention 
to  political  questions.  But  in  a  modern  industrial  democ- 
racy, where  the  bulk  of  the  voters  are  more  absorbed  in 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     327 

earning  their  bread  than  in  affairs  of  state,  these  conditions 
are  not  fulfilled,  and  in  case  no  one  made  it  his  business  to 
expound  public  questions  or  advocate  a  definite  solution  of 
them  they  would  commonly  go  by  default."  1 

These  three  functions,  the  formulating  of  issues,  the  Summary 
maintenance  of  a  collective  and  continuing  responsibility,  °ffunctions- 
and  the  political  education  of  the  electorate,  would  not  be 
performed  if  the  party  organizations  did  not  take  them  in 
hand,  yet  their  value,  indeed  their  indispensableness,  is 
beyond  question.  Political  parties,  as  Lord  Bryce  has  well 
said,  are  "to  the  organs  of  government  almost  what  the  motor 
nerves  are  to  the  muscles,  sinews,  and  bones  of  the  human 
body.  They  transmit  the  motive  power,  they  determine  the 
directions  in  which  the  organs  act."  They  link  private  opin- 
ion to  public  policy  and  thus  make  concrete  for  millions 
of  men  and  women  what  would  otherwise  be  mere  ab- 
stractions. 

Political  parties,  therefore,  have  important  and  useful  Need  of 
work  to  perform.      To  do  it  effectively  they   require  ma-  ™a^jnery 
chinery.     Candidates  must  be  brought  forward,  hence  the  out  these 
need   for   caucuses   or   conventions   or   primaries.     Candi-  functlons- 
dates,    moreover,    cannot    be    elected    without  effort,  and 
a  good  campaign  requires  funds,  workers,  and  discipline. 
Hence  the  need  for  party  committees  and  officials,  for  party 
contributions,  and  for  the  whole  complicated  mechanism  of 
party  organization.     American  party  machinery  is  not  a 
chance  development.    Neither  is  it  the  product  of  human  per- 
verseness.     Itis  not  even  the  outcome  of  political  indifference 
on  the  part  of  a  people  so  engrossed  in  their  private  vocations 
as  to  surrender  the  conduct  of  public  business  into  pro- 
fessional hands.     It  is  merely  the  result  of  a  desire  to  do  in 
an  efficient  way  the  things  that  have  to  be  done  in  every 
popular  government  and  cannot  be  so  well  done  by  any 
other  machinery. 

When   reformers,  therefore,   plead   for   the   abolition   of  JenceoT 
parties  or  for  the  breakdown  of  party  organizations  through  party  is 
the  development  of  individual  political  independence  they  no* 
display  unfamiliarity  with  the  fundamentals  of  democratic  a  virtue. 

1  A.  L.  Lowell,  Public  Opinion  and  Popular  Government  (N.  Y.,  1913), 
p.  61. 


328      THE  GOVERNMENT  OF  THE  UNITED  STATES 


It  is  one 
way  of 
insuring 
bad  govern- 
ment. 


Advantages 
of  the  two- 
party 
system. 


government.  President  Lowell  quotes  "a  prominent  re- 
former" who  urged  that  it  was  the  duty  of  every  good 
citizen  to  go  to  the  polls  and  to  vote  for  the  man  he  thought 
most  fit  for  an  office,  whether  other  people  proposed  to  vote 
for  him  or  not.1  And  he  adds,  quite  rightly,  that  a  more 
certain  way  of  insuring  the  victory  of  undesirable  candidates 
could  hardly  be  devised.  One  might  as  well  say  that  every 
good  soldier  should  fight  as  his  own  conscience  directs,  and 
not  as  the  interest  of  the  whole  army  seems  to  demand.  An 
army  acting  on  that  principle  would  be  sure  to  lose,  but  no 
surer  than  a  body  of  voters  following  the  same  principles  of 
discipline.  In  matters  affecting  individual  conduct  only, 
each  member  of  the  community  may  let  his  own  political  in- 
dividuality have  free  rein ;  but  the  election  of  competent 
officials,  the  putting  of  good  laws  on  the  statute  book,  and 
the  inauguration  of  reforms  in  government  are  matters 
that  require  unity  of  effort.  It  is  the  function  of  the 
party  to  provide  the  means  for  this  concerted  action,  hence 
the  stanchest  party  may  be  in  reality  the  most  effective 
reformer. 

It  will  now  become  more  readily  apparent,  perhaps,  why 
third  parties  come  into  existence  only  when  the  regular 
party  system  is  not  working  smoothly.  The  most  satis- 
factory working  of  representative  government  is  secured 
under  a  two-party  system,  one  party  unitedly  supporting 
the  administration,  the  other  presenting  a  vigorous 
opposition.  When  its  support  is  divided,  an  administration 
cannot  be  sure  of  its  ground ;  it  must  compromise ;  its 
policy  will  not  be  firm  and  decisive.  If,  on  the  other  hand, 
the  opposition  is  divided,  the  administration  will  not  be 
subjected  to  that  unrelenting  pressure  which  is  necessary 
to  keep  it  on  its  mettle,  endeavoring  to  do  its  best.  Where 
there  are  three,  four,  or  five  parties  there  is  no  distinctness 
of  issue  and  the  elections  decide  nothing  permanently.  In 
France  and  in  Italy,  where  there  are  several  political  parties, 
the  effect  has  been  to  hinder  the  continuity  of  public  policy, 
to  weaken  the  administration,  and  to  becloud  the  issues  which 
go  before  the  people.  The  steady  maintenance  of  the  two- 
party  system  in  both  Great  Britain  and  the  United  States 
1  Public  Opinion  and  Popular  Government  (N.  Y.,  1913),  p.  67. 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     329 

is  not  indicative  of  a  public  opinion  which  lacks  independence 
but  is  a  tribute  to  the  practical  political  capacity  of  the 
Anglo-Saxon  race. 

Where  two  political  parties  are  well  organized  and  where  NO  room 
their  leaders  are  alert  there  is  no  room  for  a  third  party, 
Things  which  the  voters  desire  will  be  taken  in  hand  by  one  in  a 
or  other  of  the  two  regular  parties  and  incorporated  into  its 
own  programme  long  before  they  can  be  used  as  the  endow-  democracy, 
ment  of  a  new  party.     If  the  two  regular  parties  do  not  use 
unceasing  vigilance  in  this  direction,  and  if  they  are  not 
always  on  the  lookout  for  new  and  popular  issues,  they 
fail  to  fulfil  one  of  their  chief  functions.     There  should  be 
no  issues  left  for  a  third  party  to  pick  up  but  those  which  Two  parties 
are  either  unpopular  or  ( impractical.     All  political  issues,  ^he  issues 
by  the  way,  may  be  grouped  into  three  classes ;  those  which 
are  popular  but  impractical ;    those  which   are  practical 
but  not  popular ;    and  those  which  are  both  popular  and 
practical.     The  regular  parties    capture    all    of  the  last ; 
no  party  wants   the    second ;    the   third    parties   usually 
take  possession  of  the  first. 


CHAPTER  XXIII 

POLITICAL   PARTIES    IN   NATIONAL   GOVERNMENT  I 
THEIR   ORGANIZATION  AND   METHODS 

A  POLITICAL  party  depends  for  its  success  upon  individual 
discipline  and  united  effort,  both  of  which  are  the  outcome  of 
careful  organization.  American  party  organizations  have 
developed  from  rudimentary  beginnings,  but  they  are  now 
the  most  elaborate  and  efficient  institutions  of  their  type 
in  any  country.1 

Early  During  colonial  days  there  existed  in  Boston  and  in  other 

tion^lhe  New  England  towns  various  clubs  or  cliques  which  were  at 
caucus.  first  social  in  character,  but  which  became  hotbeds  of  political 
discussion  during  the  stormy  days  of  stamp  taxes  and  tea 
parties.  The  Caucus  Club  in  Boston  was  a  conspicuous 
example.2  At  its  more  or  less  secret  meetings  the  wheels 
were  set  in  motion  for  influencing  the  deliberations  of 
the  colonial  assembly  and  the  town  meeting.  After  the 
Revolution  some  similar  clubs  or  "Democratic  Societies'* 
were  formed  in  the  cities  and  towns  of  the  various  states , 
but  public  opinion  did  not  take  kindly  to  these  self-created 
organizations  and  they  eventually  went  out  of  existence. 

1  There  are  several  excellent  monographs  on  the  organization  and 
methods  of  American  political  parties,  but  special  mention  should  be  made 
of  Jesse  Macy,  Party  Organization  and  Machinery  (N.    Y.,    1904) ;    M. 
Ostrogorski,  Democracy  and  the  Organization  of  Political  Parties  (2  vols., 
N.  Y.,  1902)  ;  and  P.  Orman  Ray,  Political  Parties  and  Practical  Politics 
(2d  ed.,  N.  Y.,  1917). 

2  The  origin  of  the  term  "caucus"  is  not  known.     Some  believe  it 
to  have  been  derived  from  the  Algonquin  Indian  kaw-kaw-was,  meaning 
to  talk  or  confer.     Others  have  derived  it  from  "  caulkers  "  because  secret 
political  meetings,  which  are  said  to  have  originated  in  Boston,  were  held 
by  the  ship  caulkers  to  make  protests  against  the  actions  of  English 
soldiers.     For  further  details,  see  M.  Ostrogorski,  Democracy  and  the  Party 

tern  (N.  Y.,  1910),  pp.  3-4. 

330 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     331 

Party  machinery  did  not,  therefore,  obtain  its  earliest 
development  through  organizations  of  the  people  them- 
selves. It  came  through  another  channel,  namely,  the 
organization  of  caucuses  in  the  national  and  state  legisla- 
tures, in  other  words  through  the  development  of  party 
nominations  for  office. 

In  local  elections,  during  the  earlier  part  of  the  nineteenth  Party 
century,  nominations  were  made  at  town  or  county  meetings  °kfn  i^the 
where  the  number  of  the  voters  was  sufficiently  small  to  early  part 
permit   their   coming  together. v  Not   only   the   town   and  riJ^enth 
county  officers  but  the  representatives  in  the  state  legislature  century, 
and  in  Congress  were  nominated  in  this  way.1     Quite  often 
the  candidates  were  virtually  picked  out  beforehand  by 
small  groups  of  men  who  represented  different  shades  of  i.  Local 
political  opinion,  and  the  general  town  or  county  meetings 
merely  indorsed  these  selections.     There  were  no   regular  tions. 
town  or  county  committees  in  charge  of  the  local  party 
interests,  and  no  party  funds. 

In  the  case  of  state  elections,  for  such  offices  as  those  of  2.  state 
governor  or  lieutenant-governor,  however,  the  plan  pursued 
in  local*  elections  could  not  so  easily  be  followed.  The 
function  of  making  the  preliminary  selection  of  party 
candidates  for  state  offices  was  therefore  taken  in  hand  by 
the  members  of  the  state  legislature.  This  was  natural 
enough,  because  the  legislators  formed  the  only  available 
body  of  delegates  representing  the  entire  state.  Hence 
arose  the  legislative  caucuses,  in  which  the  members  belong-  The  legis- 
ing  to  the  same  party  in  both  Houses  came  together,  decided 
upon  their  respective  nominations,  and  announced  them  to 
the  voters.  The  legislative  caucus  spread  to  all  the  states. 
It  was  not  the  creation  of  any  individual  or  party,  but  arose 
from  the  simple  fact  that  it  was  at  the  time  the  only  practi- 
cable way  of  making  selections  on  behalf  of  the  voters 
throughout  the  whole  state.  It  was  not  easy  in  those  days 

1  "To  nominate  candidates  for  elective  offices  which  went  beyond  the 
limits  of  the  county,  delegates  from  several  localities  often  assembled. 
But  these  meetings  were  composed  in  an  anything  but  regular  way ;  too 
often  the  representation  of  the  different  localities  was  neither  complete  nor 
direct.  The  decisions  taken  in  them,  however,  were  not  binding ;  neither 
voters  nor  candidates  considered  themselves  bound  by  the  nominations 
made."  M.  Ostrogorski,  Ibid.,  p.  5, 


332      THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.  National 
party  or- 
ganization. 


The  con- 
gressional 
caucus. 


Opposition 
to  the 
congres- 
sional 
caucus. 


The  prac- 
tical 

objection 
to  it. 


to  gather  a  special  convention  of  party  delegates  together ; 
travelling  was  difficult  and  costly ;  the  local  party  organi- 
zations were  not  strong,  and  there  were  no  party  funds. 
The  spoils  system,  moreover,  had  not  yet  been  devised  to 
furnish  a  corps  of  aspiring  office-holders,  party  enthusiasts, 
and  professional  workers  wherewith  to  fill  a  convention  hall. 

In  Congress  also  the  legislative  caucus  as  a  means  of 
expressing  the  consensus  of  each  party  in  nominations  for 
office  was  soon  adopted.  In  1800  both  the  Federalist 
and  the  Democratic-Republican  members  of  the  Senate 
and  the  House  of  Representatives  held  secret  conclaves  and 
nominated  their  respective  candidates  for  the  Presidency  and 
the  Vice-Presidency,  recommending  these  candidates  to  the 
presidential  electors  in  the  several  states.  At  the  election 
of  1808  they  did  the  same  thing ;  but  on  this  occasion  their 
caucuses  were  not  secret.  There  were  plenty  of  protests 
against  this  arrogation  of  nominating  authority,  but  the 
presidential  electors  accepted  the  advice  given  them  by  their 
respective  congressional  caucuses,  for  there  seemed  to  be  no 
practical  alternative.  The  congressional  caucus  included 
senators  and  representatives  from  all  over  the  country. 
Surely  these  congressmen  were  able  to  express  the  sentiment 
of  their  states  quite  as  well  as  any  other  body  of  men  could 
do  it.  No  other  gathering  so  representative  of  the  whole 
party  could  have  been  brought  together  in  those  days. 

Yet  the  congressional  caucus  was  not  favorably  regarded 
by  public  opinion  at  any  time,  and  popular  antagonism 
grew  stronger  as  time  went  on.  This  antagonism  reflected 
itself  in  Congress  to  such  an  extent  that  in  1820  President 
James  Monroe  was  renominated  without  the  indorsement 
of  a  congressional  caucus  at  all,  and  in  1824  the  last  attempt 
to  nominate  candidates  by  caucus  action  proved  a  hopeless 
fiasco.  The  ostensible  objection  to  the  congressional  caucus 
was  its  defiance  of  the  spirit  of  the  constitution.  Congress, 
the  people  felt,  was  virtually  usurping  the  function  of 
choosing  the  President.  There  was  also  the  practical 
objection  that  the  congressional  caucus  represented  only  a 
portion  of  those  who  made  up  the  party.  Districts  rep- 
resented in  Congress  by  members  of  one  party  had  no 
representation  in  the  caucus  of  the  other  party.  Yet  such 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     333 

districts  might  contain  large  numbers  of  voters  professing 
allegiance  to  this  other  party.     At  any  rate  the  legislative  its  decline, 
caucus,  both  in  national  and  in  state  campaigns,  completely 
disappeared  after  1824.1 

The  rise  of  the  nominating  convention  overlapped  the  Rise  of 
decline  of  the  legislative  caucus  in  the  states.     To  meet  the 
practical  objection  referred  to  in  the  preceding  paragraph  it  tions: 
became  the  custom,  when  the  legislative  caucus  met  for  the 
purpose  of  nominating  candidates  for  state  offices,  to  call 
in  some  outside  delegates  chosen  for  the  purpose,  particularly 
from  those  towns  or  counties  which  would  not  otherwise  (a)  in  the 
have  representation  there.     These  mixed  bodies,  made  up  8tates< 
of  legislators  and  delegates,  soon  gave  way,  however,  to 
regular  party   conventions  made  up   wholly   of  delegates 
chosen  for  this  purpose  alone.     The  first  regular  convention 
of    this    type    to    nominate    state    officers    was    held    in 
Pennsylvania  in  1817.     Gradually  the  plan  spread  to  the 
other  states  as  well. 

In  the  field  of  national  government  the  transition  from  (&)  in 
legislative  caucus  to  national  convention  was  through  a  thenatlon- 
somewhat  different  channel.  The  congressional  caucus 
practically  disappeared,  as  has  been  said,  after  1824.  What 
took  its  place?  In  the  campaign  of  1828  the  candidacy  of 
Andrew  Jackson  was  announced  by  the  legislature  of  his 
own  state,  Tennessee,  and  was  indorsed  by  a  number  of 
informal  public  gatherings  elsewhere.  His  opponent,  John 
Quincy  Adams,  was  not  formally  nominated  by  any  caucus 
or  convention.  Having  served  one  term  as  president,  he 
was  by  general  acquiescence  deemed  to  be  a  logical  candidate 
of  his  party  for  another  term. 

Four  years  later,  however,  a  different  course  was  taken.  The  system 
As  the  campaign  of  1832  was  about  to  open,  assemblies  ofnationai 

conventions 

made  up  of  delegates  from  the  several  states  were  called  makes 
together,  and  these  bodies  placed  the  various  candidates  headway- 
in  nomination.     As  yet  they  could  scarcely  be  called  con- 
ventions, for  they  did  not  contain  delegates  from  all  the 
states  and  the  basis  on  which  they  were  chosen  was  not 
definitely  settled.     But  in  due  course  national  conventions, 

1  C.  S.  Thompson,  The  Rise  and  Fall  of  the  Congressional  Caucus  (New 
Haven,  1902). 


334      THE  GOVERNMENT  OF  THE  UNITED   STATES 


Organiza- 
tion of 
the  na- 
tional 
party. 


Conven- 
tions. 


How  dele- 
gates are 
chosen. 


Work  of 
the  national 
party 
conven- 
tions : 

Adopting 
the  party 
platform. 


made  up  of  party  delegates  from  all  the  states  and  chosen  on 
a  recognized  basis  of  apportionment,  became  the  recognized 
agencies  of  nomination.  As  time  went  on  these  conventions 
developed  a  systematized  organization ;  they  were  brought 
to  some  extent  under  the  supervision  of  the  law,  and  they 
became  an  integral  part  of  American  electoral  machinery. 

To  nominate  their  respective  candidates  for  the  Presidency 
and  the  Vice-Presidency,  each  political  party  holds  a  national 
convention  once  in  every  four  years.  Republicans,  Demo- 
crats, Prohibitionists,  and  Socialists  each  have  their  own 
gathering  of  this  sort.  The  time  and  place  of  meeting 
are  decided  in  each  case  by  the  party's  national  committee, 
a  body  which  will  be  described  presently.  The  national 
convention  is  made  up  of  delegates  from  every  state,  each 
state  having  twice  as  many  delegates  as  it  has  presidential 
electors,  in  other  words,  twice  as  many  delegates  as  it 
has  United  States  senators  and  representatives  combined. 
Massachusetts,  for  example,  has  two  senators  and  sixteen 
representatives  in  Congress.  It  is  entitled,  therefore,  to 
eighteen  presidential  electors  and  it  sends  to  each  national 
convention,  Republican  or  Democratic,  thirty-six  delegates. 
An  allotment  of  delegates  is  also  made  to  the  District  of 
Columbia,  Hawaii,  Porto  Rico,  the  Philippines,  and  Alaska, 
so  that  the  total  membership  of  a  national  convention  is 
about  one  thousand.  In  addition  it  is  the  practice  to 
provide  each  delegate  with  an  alternate,  that  is,  with  some- 
body to  take  the  delegate's  place  if  the  latter  should  be 
absent  from  any  of  the  convention's  sessions. 

Prior  to  1912  the  delegates  to  both  the  Republican  and  the 
Democratic  national  conventions  were  practically  everywhere 
chosen  by  state  or  local  conventions ;  but  in  recent  years 
this  plan  has  given  way  to  the  method  of  selection  by  party 
primaries  in  about  half  the  states. 

The  nomination  of  candidates  is  not  the  only  function 
which  party  conventions,  whether  in  the  nation  or  in  the 
states,  are  expected  to  perform.  They  also  prepare  and 
issue  the  party  platforms,  the  actual  work  being  done  by  a 
committee  and  submitted  to  the  convention,  which  almost 
invariably  accepts  it  without  much  amendment.  Until 
1912  the  conventions  also  chose  the  national  committees, 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     335 

but  in  that  year  the  Democratic  convention  provided  that 
the  national  committee  of  that  party  should  be  chosen,  one 
member  from  each  state,  by  the  voters  at  the  primary. 
The  Republican  convention  continues  to  name  members  of 
its  national  committee  wherever  the  state  laws  do  not 
provide  for  their  election  by  popular  vote. 

The  national  committee  has  its  chairman,  who  may  or  The 
may  not  be  one  of  its  members.  He  is  the  party's  chief  of 
staff  and  head  strategist.  Ostensibly  he  is  chosen  by  the  committee, 
national  committee,  but  in  reality  he  is  the  personal  choice 
of  the  party's  candidate  for  the  presidency.  No  man  can 
have  too  much  skill,  ingenuity,  resourcefulness,  or  patience 
for  this  position.  "He  must  be  a  master  of  details,  and  its 
at  the  same  time  capable  of  taking  a  correct  view  of  the  chairman- 
general  situation  and  endowed  with  an  unlimited  capacity  for 
hard  work.  He  must  possess  the  confidence  of  party  leaders 
and  have  an  almost  intuitive  grasp  of  the  popular  feeling. 
He  must  keep  in  touch  with  every  fibre  of  the  organization, 
holding  frequent  conferences  with  state  chairmen  in  the 
most  important  and  doubtful  states.  He  must  be  con- 
ciliatory, secretive  yet  approachable,  keen  in  his  choice 
of  helpers,  able  to  command  the  services  of  the  most  effective 
workers  in  the  party,  and  capable  of  making  them  work  in 
unison  without  overlapping."  1  The  ideal  national  chair- 
man is  a  rare  individual,  for  nature  does  not  often  combine 
all  these  qualities  in  the  same  personalit)^ 

The  national  chairman  is  often  a  factor  of  great  importance  His 
in  determining  the  party's  success  or  failure  at  a  presidential  f 
election.  He  must  plan  the  campaign,  select  the  vulnerable 
spots  in  the  embattlements  of  his  adversaries,  and  bolster 
up  the  weak  places  in  his  own.  It  is  for  him  to  determine 
what  states  need  particular  attention  and  what  states  need 
little  or  none.  He  virtually  decides  how  and  where  the 
campaign  funds  of  his  party  shall  be  spent,  allotting  them 
as  his  judgment  dictates  to  this  or  that  purpose,  or  to 
this  or  that  section  of  the  country.  President  Harrison 
probably  owed  his  election  in  1888  to  the  skill  and  energy 
of  Senator  Quay  of  Pennsylvania,  then  chairman  of  the 

1  P.  O.  Ray,  Political  Parties  and  Practical  Politics  (2d  ed.,  N.  Y.,  1917), 
pp.  235-236. 


336   THE  GOVERNMENT  OF  THE  UNITED  STATES 

National  Democratic  Committee,  and  although  President 
McKinley  would  probably  have  been  the  victor  at  the 
election  of  1896  in  any  event,  his  large  majority  was  mainly 
due'  to  the  work  of  the  Republican  national  chairman, 
Senator  Mark  Hanna  of  Ohio. 

Thesecre-         Next  in  point  of  importance  to  the  national  chairmen 
the7  °f          are  ^e  secretaries  of  the  national  committees.     Each  is  in 
national        charge  of  his  party's  national  headquarters,  supervising  the 
committee     enormous  amount  of  correspondence  which  pivots  on  that 
point,   and   handling   a   legion   of   details   relating  to   the 
itineraries  of  campaign  speakers,  the  publication  of  cam- 
paign .  literature  and  the  coordination  of  every  campaign 
activity.     These  secretaries  are  paid  and  permanent  officials. 
Auxiliary          Each  national  committee  maintains  a  number  of  sub- 
committees, committees    or  auxiliary   committees,   made    up   to    some 
extent  from  its  own  members  but  to  a  much  larger  propor- 
tion by  the  selection  of  prominent  party  workers  outside. 
Among  these    auxiliaries  are  finance    committees   of  each 
party,  publicity  committees,  speakers'  bureaus,  organization 
committees,  and  so  on.     Each  of  these  groups  is  responsible 
for  some  special  branch  of  campaign  activities,  but  all  are 
under  the  general  direction  of  the  national  committee  and 
under  the  immediate  supervision  of  the  national  chairman. 
The  con-  The  work  of  the  national  committee  of  each  party  is 

campaign  primarily  concerned  with  presidential  elections.  The  special 
committees,  function  of  assisting  the  party's  candidates  for  Congress  is 
devolved  upon  separate  committees,  known  as  the  con- 
gressional campaign  committees.  Each  party  maintains  a 
committee  of  this  type.  The  chief  work  of  these  com- 
mittees comes  midway  between  presidential  elections  when 
congressmen  are  being  chosen  in  the  "off-years."  In 
organization  they  are  like  the  national  committees,  being 
composed  of  one  member  from  each  state  and  territory.1 
They  likewise  have  their  respective  chairmen  and  secretaries. 
But  their  members  are  chosen  differently.  Both  political 
parties  select  their  congressional  campaign  committees 
by  means  of  legislative  caucuses.  The  Republicans  make 
their  selections  at  a  joint  caucus  of  the  Republican  senators 
and  representatives  in  Washington ;  the  Democrats  convene 
1  The  Democratic  committee  has  nine  additional  members. 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     337 

their  senators  and  their  representatives  in  separate  caucuses. 
The  committees  are  made  up  mainly  from  among  the 
congressmen  themselves.1 

The  work  of  these  party  committees,  each  in  its  own  field,  Work  of 
covers  a  wide  range.  Details  of  the  nominating  convention  committees. 
have  to  be  arranged.  Then  there  is  the  general  planning 
of  the  election  campaign  and  the  selection  of  subcommittees 
to  take  charge  of  different  branches  of  the  work.  There  is 
the  preparation  of  campaign  literature  and  its  effective 
distribution.  Speakers  have  to  be  secured  ;  meetings  pro- 
vided for  and  announced  ;  local  committees  must  be  set 
to  work  ;  causes  of  friction  or  dissatisfaction  here  and  there 
have  to  be  eliminated  ;  campaign  funds  must  be  raised 
and  apportioned,  canvassing  and  newspaper  propaganda 
organized,  and  arrangements  made  for  getting  out  the  vote 
on  election  day. 

It  is  not  to  be  assumed,  of  course,  that  the  national  Thedevoiu- 
committee  looks  after  all    these  matters  in  a  presidential 


campaign.  Each  member  of  the  committee  is  to  some  functions. 
extent  in  charge  of  the  arrangements  for  his  own  state, 
cooperating  with  the  state  committee.  But  the  detailed 
work  is  in  large  measure  delegated  to  state  committees, 
auxiliary  committees,  or  local  party  organizations.  The 
general  responsibility,  however,  cannot  be  delegated,  so 
that,  to  borrow  a  military  metaphor,  the  national  committee 
serves  as  the  general  staff  of  the  party  forces.  The  state 
and  local  organizations  form  a  hierarchy  of  divisional,  bri- 
gade, and  regimental  staffs  who  direct  the  operations  of 
their  respective  units.  The  theory  of  party  organization 
is  that  it  is  controlled  from  below,  by  the  men  and  women 
in  the  party  ranks.  In  actual  fact,  however,  the  control 
and  direction,  as  in  military  organization,  comes  always 
from  above.  It  is  only  in  the  event  of  a  mutiny  that 
the  ordinary  soldier  in  the  party's  ranks  gets  any  measure 
of  control. 

Political  campaigns  are  not  waged  with  uniform  aggressive- 
ness all  over  the  country.  In  some  sections,  where  the 
party  is  strong  and  united,  the  national  committee  finds 

1  For  a  further  description  see  Jesse  Macy,  Party  Organization  and 
Machinery  (N.  Y.,  1912),  ch.  vii. 


338      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  theory 
and  the 
practice 
of  party 
organiza- 
tion. 


The  need 
of  tense 
effort  in 
a  presiden- 
tial cam- 
paign. 


Party 
finance. 


The  quest 
for  con- 
tributions. 


little  to  do.  In  other  sections,  where  the  party's  chances 
of  success  seem  to  be  hopeless,  it  will  also  put  forth  little  of 
its  energy.  The  Democratic  national  committee  does  not 
bother  itself  much  about  a  presidential  campaign  in  Te"xas. 
Nor  does  the  Republican  national  committee  give  its  chief 
thought  to  Pennsylvania.  The  result  is  that  efforts  are 
largely  concentrated  from  both  sides  upon  the  doubtful 
states,  the  states  which  may  be  swung  from  one  party 
column  to  the  other  by  dint  of  good  strategy,  careful 
organization,  and  the  free  expenditure  of  party  funds. 

In  a  national  campaign  all  the  machinery  of  the  party,  and 
every  wheel  in  it,  must  be  run  at  full  speed.  From  the 
smallest  village  or  township  committee  through  the  district 
and  state  organizations  the  party's  entire  strength  must  be 
put  forth  in  perfect  articulation.  For  it  must  always  be 
remembered  that  the  outcome  in  the  nation  may  hinge 
upon  victory  or  defeat  in  a  single  state.  New  York  turned 
the  scale  in  1884 ;  California  did  likewise  in  1916.  A 
relatively  slight  lapse  from  sound  political  strategy  was 
responsible  for  the  defeat  of  Mr.  Blaine  in  the  one  case 
and  of  Mr.  Hughes  in  the  other.  On  either  occasion  the 
shifting  of  about  a  thousand  votes  would  have  changed  the 
line  of  presidents.  Mishaps  of  this  sort  have  taught  party 
leaders  the  value  of  capable  guidance,  good  discipline,  and 
thorough  organization. 

The  activities  of  a  political  party  in  a  national  campaign 
require  large  expenditures.  In  the  campaign  of  1916  the 
Democrats  spent  nearly  two  million  dollars  while  the 
Republicans  disbursed  almost  twice  that  amount.  Nor 
do  these  figures  tell  the  whole  story  of  actual  expenditures, 
for  while  each  national  committee  has  its  own  fund,  so  has 
every  state  committee.  Likewise  the  various  city,  county, 
district,  and  town  committees  have  special  campaign  funds 
of  their  own.  Being  raised  and  spent  independently, 
these  latter  are  not  included  in  the  national  totals. 

To  secure  these  funds  every  committee,  national,  state, 
and  local,  has  its  treasurer  and  usually  its  subcommittee  on 
finance.  The  first  step  is  usually  to  send  out  circulars 
asking  for  contributions.  These  circulars  go  to  all  party 
leaders,  to  all  candidates  and  office-holders  belonging  to  the 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     339 

party,  to  all  who  have  contributed  in  previous  campaigns,, 
and  to  all  others  from  whom  subscriptions  may  for  any 
reason  be  expected.  Much  money  comes  in  by  way  of 
response  to  this  preliminary  call.  Then  a  second  and  more 
urgent  appeal  is  commonly  sent  to  those  who  have  not 
responded.  But  no  party  war  chest  can  be  filled  by  im- 
personal solicitation.  Personal  canvassing  must  also  be 
undertaken,  especially  to  get  large  contributions.  This 
work  is  done  by  the  national  chairman  and  the  treasurer, 
hence  it  is  desirable  to  have  as  treasurer  some  one  who  has  a 
large  personal  acquaintance  with  men  of  means.  The 
national  and  state  committees  also  have  auxiliary  commit- 
tees on  finance,  the  members  of  which  assist  the  treasurer 
in  this  work. 

Subscriptions  to  party  funds  on  the  eve  of  a  national  Where  the 
election  come  from  many  sources.  Some  of  them  are  made  ^^ 
by  persons  who,  acting  for  themselves  or  for  corporations,  from, 
have  more  than  merely  altruistic  ends  to  serve.  Men  who 
aspire  to  office  or  to  future  political  favors  of  any  sort 
usually  find  places  for  their  names  upon  the  subscription 
rolls.  Large  sums  often  come  from  those  who  anticipate 
that  the  success  of  one  or  the  other  party  would  affect  their 
own  business  profits.  In  the  election  campaign  of  1896 
millions  were  given  to  the  Republican  fund  by  manufacturers 
who  sincerely  believed  that  the  Democratic  programme  of 
free  coinage  of  silver  and  tariff  reduction  threatened  the 
business  interests  of  the  country  with  ruin.  There  was  a 
time  when  corporations  and  public  officials  were  literally 
black-jacked  into  making  contributions.  Regular  assess- 
ments were  levied  upon  federal  office-holders  in  proportion 
to  their  salaries.  These  are  now  things  of  the  past.  They 
are  forbidden  by  the  laws  and  by  the  civil  service  regulations. 
Corporations  are  now  pretty  well  protected  against  black- 
mailing politicians,  for  by  law  they  have  been  forbidden  to 
contribute  anything  to  national  campaign  funds. 

Another  factor  which   has   proved   of   great   service    in  The  control 
lessening  the  evils  connected  with  the  raising  of  campaign  ^ancePbygn 
funds  is  the  practice  of  requiring  the  publication  of  the  publicity, 
subscription  lists.     An   act   of   Congress,   passed  in   1910, 
requires  the  national  party  committees  to  file  before  the  day 


340      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Ramifica- 
tions of 
party  in- 
fluence. 


Why  strong 
parties  are 
needed  in 
America. 


Relation 
of  party  ism 
to  the 
American 
system  of 
govern- 
ment. 


of  the  election  detailed  statements  of  all  their  receipts  and 
expenses,  showing  who  have  contributed  to  the  funds  and 
where  the  money  is  being  spent.  The  law  no  longer  looks 
upon  the  national  party  funds  as  private  patrimony  to  be 
used  as  its  custodians  see  fit,  but  as  semi-public  money 
to  be  collected  and  disbursed  under  strict  governmental 
supervision.  One  salutary  result  of  this  has  been  to  make 
the  party  leaders  more  dependent  upon  small  contributors 
and  hence  more  directly  accountable  to  the  rank  and  file 
of  the  voters.  In  recent  presidential  campaigns  every 
effort  has  been  made  by  both  parties  to  gather  large  numbers 
of  small  subscriptions,  and  to  an  astonishing  degree  these 
endeavors  have  proved  successful. 

The  party  system,  not  only  during  an  election  campaign 
but  in  the  intervals  between  elections,  permeates  every 
phase  of  American  political  life.  The  framers  of  the  con- 
stitution, were  they  to  emerge  from  their  graves,  would 
doubtless  view  this  situation  with  amazement,  yet  it  is 
difficult  to  see  how  any  other  outcome  of  their  work  could 
have  been  looked  for.  In  a  federalism  where  national  and 
state  governments  have  independent  spheres  of  jurisdiction, 
with  a  government  based  upon  the  principle  of  division  of 
powers  between  executive  and  legislative  organs,  the  party 
system  furnishes  the  one  great  coordinating  force.  The 
expression  and  the  execution  of  the  people's  will  must 
somehow  be  conjoined  in  every  system  of  popular  govern- 
ment. If  an  articulation  is  not  provided  for  by  the  con- 
stitution or  the  laws,  it  will  develop  outside,  usually  in  the 
form  of  a  party  system.  And  the  greater  the  official  barriers 
in  the  way  of  coordination  the  more  elaborate  and  the  more 
centralized  will  be  the  party  organization  needed  to  over- 
come these  obstacles.1 

This  is  one  reason  why  the  American  party  system  has 
developed  so  much  more  machinery  than  have  the  party 
systems  of  England  or  France.  The  correlation  between 
central  and  local  administration,  and  between  the  legislative 
and  executive  organs  in  these  countries  is  provided  for 
within  the  frame  of  government  itself.  In  the  United 

1  For  an  elaboration  of  this  point,  see  F.  J.  Goodnow,  Politics  and 
Administration  (N.  Y.,  1900),  especially  ch.  ii. 


POLITICAL  PARTIES  IN  NATIONAL  GOVERNMENT     341 

States  no  single  organ  of  government,  President  or  Con- 
gress, has  power  to  shape  the  entire  national  policy. 
Yet  public  policy  ought  to  be  carried  into  operation  by  the 
organs  of  government  acting  in  unison,  and  to  secure  this 
accord  is  the  aim  of  each  political  party.  Whatever  the  Partyism 
theory  of  the  constitution  may  be,  the  party  organizations 
have  become  in  fact  the  great  policy-determining  factors 
in  American  government.  By  far  the  larger  part  of  what 
Congress  does  is  at  the  behest  of  party  leaders.  By  far 
the  larger  part  of  what  it  puts  upon  the  statute-books  is  by 
way  of  redeeming  promises  made  in  the  platform  of  the 
majority  party.  "Congress  as  at  present  constituted,"  a 
recent  writer  complains,  "is  ninety-nine  per  cent  politics," 
and  he  proceeds  to  urge  that  "the  first  concern  of  every 
economic  and  moral  interest  should  be  to  reverse  this 
relation. "  1 

Such  comments  display  a  poor  mastery  of  the  science  of  The  eiimi- 
government.     The  destruction  or  even  the  serious  weakening 
of  partyism,  whether  in  Congress  or  out  of  it,  would  in  all  of  the 
probability  impair,  not  improve,  the  practical  workings  of  ^m  would 
American  national  government  so  long  as  the  present  con-  not  improve 
stitution  of  the  United  States  is  retained.     A  federalism,  legislation- 
and  particularly  a  federalism  which  possesses  a  central  gov- 
ernment based  upon  the  principle  of  division  of  powers, 
demands  the  centripetal  influence  of  partyism.     Most  of 
the  assaults  which  have  been  made  upon  the  party  system 
are  the  result  of  a  failure  to  comprehend  the  true  aims  and 
functions  of  political  parties.     It  is  quite  true  that  in  their 
organization   and   work   political   parties   have   developed 
many  excrescences  and  have  often  been  guilty  of  public 
abuses.     But    to    get    rid    of   parties    altogether   on    that 
account  would  be  a  ruthless  sort  of  political  surgery.     The 
true  task  of  the  reformer,  and  the  one  to  which  too  much 
attention  cannot  be  given,  is  that  of  making  the   party 
system  conform  to  its  professed  and  proper  functions. 

1  Lynn  Haines,  Your  Congress  (Washington,  1915),  p.  40. 


CHAPTER  XXIV 


The  need 
of  a 
strong 
judiciary.  ] 


What  the 
constitu- 
tion 
provides. 


THE  JUDICIAL  POWER  OF  THE   UNITED   STATES 

A  FEDERAL  system  of  government,  if  it  is  to  be  successful, 
must  have  a  provision  for  a  strong  judiciary.  Federalism 
by  its  very  nature  implies  a  division  of  authority  between  the 
central  and  the  state  governments  with  the  certainty  that 
disputes  concerning  the  exact  range  of  their  respective  powers 
will  arise.  There  must,  therefore,  be  a  judiciary  strong  enough 
to  settle  such  controversies  with  fairness  to  both  authori- 
ties. The  makers  of  the  constitution  realized  that  a  decen- 
tralized judicial  organization  would  be  "a  hydra  in  govern- 
ment from  which  nothing  but  contradiction  and  confusion 
could  proceed,"  hence  by  deliberate  choice  they  set  up  a  tri- 
bunal which  in  the  extent  of  its  powers  had  no  counterpart  in 
any  other  land.  The  wisdom  of  this  action  has  been  fully 
demonstrated  by  the  manner  in  which  the  guiding  hand  of  a 
strong  judiciary  has  become  the  most  notable  feature  of 
American  constitutional  evolution.  It  may  fairly  be  said, 
in  fact,  that  the  development  of  a  Supreme  Court  into  a 
final  arbiter  of  constitutional  disputes  is  America's  most 
conspicuous  contribution  to  the  science  of  government. 

Lord  Bryce  tells  of  an  educated  Englishman  who  heard 
that  the  Supreme  Court  of  the  United  States  had  authority 
to  annul  as  unconstitutional  the  laws  of  Congress  and  spent 
two  days  reading  up  and  down  the  constitution  in  a  hunt 
for  that  particular  provision.1  It  is  no  wonder  that  his 
quest  proved  vain,  for  the  constitution  has  nothing  to  say 
on  that  point  and  very  little  about  the  powers  of  the  judiciary 
in  any  connection.  It  provides  for  a  Supreme  Court,  but 
leaves  the  organization  of  that  tribunal  to  Congress.  It 
likewise  protects  the  judges  in  all  the  federal  courts  against 

1  American  Commonwealth,  i,  246. 
342 


THE  JUDICIAL  POWER  OF  THE  UNITED  STATES     343 

improper  removal  and  secures  them  from  either  legislative 
or  executive  interference.  But  it  is  far  less  explicit  with 
reference  to  the  rights,  powers,  and  organization  of  the 
judiciary  than  with  regard  to  the  composition,  authority, 
and  procedure  of  Congress.  This  was  not,  however,  be- 
cause the  makers  of  the  constitution  failed  to  recognize  the 
importance  of  the  federal  courts.  They  did  recognize  it. 
But  they  were  of  widely  different  minds  as  to  how  such 
courts  ought  to  be  constituted,  and  they  ended  by  merely 
laying  down  a  few  general  principles  upon  which  they  were 
agreed,  leaving  to  Congress  the  task  of  determining  the 
details  later  on.  And  Congress,  by  the  Judiciary  Act  of 
1789,  performed  this  task  at  its  first  session.1 

What  need  is  there  for  federal  courts?     Why  was  not  the  Why  federal 
nation's  entire  judicial  business  left  to  be  handled  by  the  deeSecT™ 
state  courts  ?     That  had  been  done  during  the  period  before  necessary, 
the  constitution  was  framed.  The  answer  is  that  this  selfsame 
experience  had  shown  the  weakness  of  such  a  plan.     The  lack 
of  a  federal  judiciary  had  been  strongly  felt  during  these  years, 
and  it  was  realized  that  the  new  national  government,  with 
its  greater  powers,  would  have  to  lean  more  heavily  than 
ever  upon  the  sympathy  and   support    of  the  tribunals. 
Questions  would  arise  among  the  states  themselves,  more- 
over, and  there  should  be  some  judicial  authority,  standing 
outside  them  all,  to  settle  these  controversies.      There  would 
be   controversies  bearing  on  the  relations  of  the  United 
States  with  foreign  powers,  on  matters  covered  by  treaties, 
for  instance,  which  could  not  safely  be  left  for  decision  by 
each  state  through  its  own  tribunals.     But  most  important  \ 
of  all,  disputes  would  arise  as  to  the  meaning  of  various   j 
clauses  in  the  constitution  and  concerning  the  interpretation   ' 
of  laws  passed  by  Congress.     By  whom  should  such  con- 
testations be  decided  ?     To  leave  them  to  the  various  state 
courts  would  be  to  invite  chaos.     Each  court  might  render 
a  different  decision,  so  that  the  constitution  and  the  federal 
laws  would  mean  one  thing  here  and  another  thing  there. 
To  make  the  Union  real  there  must  be  a  coordinating  judicial 
organization,  in  other  words  one  or  more  tribunals  wholly 

1  This  law  remained  in  force,  with  amendments,  for  well  over  a  hundred 
years.     It  was  not  superseded  until  1911. 


arisen. 


344      THE  GOVERNMENT  OF  THE  UNITED  STATES 

independent  of  the  states.  "If  there  are  such  things  as 
political  axioms,"  wrote  Alexander  Hamilton,  "the  pro- 
priety of  the  judicial  power  of  a  government  being  co- 
extensive with  its  legislative,  must  rank  among  the  number. 
The  mere  necessity  of  uniformity  in  the  interpretation 
of  the  national  laws  decides  the  question.  .  .  .  Any  other 
plan  would  be  contrary  to  reason,  to  precedent,  and  to 
decorum."  1 

TWO  com-  These  reasons,  however,  did  not  necessitate  the  creation 
courts86"8  °f  °f  a  wn°le  hierarchy  of  federal  courts.  One  Supreme  Court 
have  would  have  sufficed  to  maintain  the  federal  supremacy  and  to 

insure  the  uniform  interpretation  of  the  laws,  leaving  to 
the  state  courts  the  function  of  hearing  all  cases  in  the  first 
instance.  Nor  does  the  constitution  expressly  require  that 
there  shall  be  any  federal  courts  other  than  the  Supreme 
Court.2  Might  it  not  have  been  possible,  then,  for  Congress 
to  have  refrained  from  establishing  subordinate  federal 
courts  and  to  have  empowered  the  state  courts  to  take 
cognizance  of  cases  falling  within  the  judicial  power  of  the 
national  government  ?  The  framers  of  the  constitution 
appear  to  have  thought  so.  As  Hamilton  distinctly  pointed 
out,  the  power  "to  constitute  tribunals  inferior  to  the 
Supreme  Court,"  as  enumerated  among  the  powers  of 
Congress,  was  "intended  to  enable  the  national  government 
to  constitute  or  authorize*  in  each  state  or  district  of  the 
United  States  a  tribunal  competent  to  the  determination 
of  matters  of  national  jurisdiction  within  its  limits." 4 
But  Congress  decided  that  it  would  be  better  for  the  new 
national  government  to  have  a  complete  series  of  its  own 
courts  from  the  lowest  to  the  highest,  and  on  the  whole 
this  decision  has  turned  out  to  have  been  wise.  The 
Supreme  Court,  moreover,  decided  some  years  after  the 
(judiciary  Act  was  passed  that  Congress  has  no  power  to 
>nfer  jurisdiction  on  any  courts  not  created  by  itself.5 
Before  the  structure  and  powers  of  the  various  federal 

1  The  Federalist,  No.  80. 

2  "The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court  and  in  such  inferior  courts  as  Congress  may  from  time  to 
time  ordain  and  establish."     Article  iii,  Section  1. 

3  The  italics  are  Hamilton's,  not  mine. 

4  The  Federalist,  No.  81.  5  Houston  vs.  Moore,  5  Wheaton,  1. 


¥•' 
i 
- 


THE  JUDICIAL  POWER  OF  THE  UNITED  STATES     345 

courts  are  explained,  it  may  be  well  to  notice  the  division  of  The  sphere 
jurisdiction  between  the  federal  courts,  taken  as  a    whole,  ^^ 
and  the  state  courts.1     The  federal  courts  have  jurisdiction*  courts, 
over   certain   classes   of   controversies   named   in  the   con-\ 
stitution;   the  state  courts  have  jurisdiction  over  all  others. 
These  matters  of  federal  cognizance  cannot  be  more  con- 
cisely or  more  clearly  summarized  than  by  quoting  the 
exact  words  of  the  constitution  itself : 

"The  judicial  power  shall  extend  to  all  cases  in  law  and  ^ 
equity  arising  under  this  constitution,  the  laws  of  the  United! , 
States,  and  treaties  made,  or  which  shall  be  made,  under, 
their  authority;    to  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls;    to  all  cases  of  admiralty 
'and  maritime  jurisdiction;    to  controversies  to  which  the- 
United  States  shall  be  a  party ;    to  controversies  between 
two  or  more  States,  between  a  State  and  citizens  of  another" ' 
State ;    between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State,  or  the 
citizens  thereof  and  foreign  States,  citizens,  or  subjects."  2 

As  a  model  of  concise  legal  phraseology  this  paragraph  of 
the  constitution  is  probably  unsurpassed  in  the  whole 
range  of  jurisprudence.  If  any  one  has  doubts  on  this 
score  let  him  try  to  recast  its  phrases  in  his  own  words. 
But  the  very  compactness  of  the  wording  makes  some 
explanation  necessary  in  order  that  the  full  force  and 
effect  of  these  provisions  may  be  properly  understood. 

First  and  most  extensive  of  the  controversies  enumerated  i.  Cases 
as  within  the  judicial  power  of  the  federal  government  are  ^Jerthe 
those  arising  under  the  constitution  and  under  the  laws  or  federal 
treaties  of  the  United  States.     Where  a  controversy  involves 
the  interpretation  of  any  clause  in  the  national  constitution  and' 
or  in  a  federal  law  or  in  a  treaty  to  which  the  United  States  treaties- 
is  a  party,  such  issue  is  for  the  federal  courts  to  settle. 

1  B.  R.  Curtis,  The  Jurisdiction,  Practice  and  Peculiar  Jurisprudence 
of  the  Courts  of  the  United  States  (2d  ed.,  Boston,  1896) ;  Joseph  Story, 
Commentaries  on  the  Constitution  of  the  United  States  (5th  ed.,  2  vols., 
Boston,  1905),  §§  1573-1795;  W.  W.  Willoughby,  Constitutional  Law  of 
the  United  States  (2  vols.,  N.  Y.,  1910),  ii,  970-998;  and  R.  M.  Hughes, 
Handbook  of  Jurisdiction  and  Procedure  in  United  States  Courts  (2d  ed., 
St.  Paul,  1913). 

2  Article  iii,  Section  2. 


346      THE  GOVERNMENT  OF  THE  UNITED   STATES 

Any  one  who  claims  a  right  under  the  constitution,  laws,  or 
treaties  of  the  United  States  may  claim  it  in  the  federal 
courts.1  To  take  an  example  :  If  a  person  or  corporation  is 
being  prosecuted  in  any  state  court  on  grounds  which  seem 
to  infringe  any  rights  guaranteed  in  the  federal  constitution 
(for  instance,  the  right  not  to  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law),  relief  may  be  sought 
in  the  federal  courts.  Or  if  any  law  made  by  Congress  is 
being  applied,  all  controversies  relating  to  it  must  come  to 
the  federal  courts.  Or,  again,  if  a  foreign  citizen  claims 

(that  rights  given  to  him  by  treaty  are  being  denied  by  any 
state  of  the  Union,  he  comes  to  the  federal  courts  for  the 
enforcement  of  his  claims.  Whenever,  in  fact,  one  of  the 
parties  to  a  suit  asserts  that  he  has  a  substantial  right  which 
arises  from  the  constitution,  laws,  or  treaties  of  the  United 
States,  this  gives  the  federal  courts  jurisdiction. 

2.  Cases  Again  the  federal  courts  have  jurisdiction  over  all  cases 
arrfbas^8       affecting  foreign  diplomats.     A  diplomatic  agent  of  a  for- 
sadors,        feign  state  is  by  international  law  immune  from  prosecution 
masters1!/ in  the  courts  of  the  country  to  which  he  is  accredited.     The 
and  consuls./  provision  of  the  American  constitution  which  extends  federal 

1  jurisdiction  to  diplomats  merely  operates,  therefore,  to  keep 

i  the  state  courts  from  a  possible  infringement  of  such  rights 

\t  international  law.     If  an  ambassador  or  other  public 

minister  of  a  foreign  state  commits  an  offence  his  recall  may 

be  requested,  or  he  may  even  be  expelled ;   but  so  long  as 

he  remains  an  accredited  diplomat  his  freedom  from  legal 

process  is  guaranteed.     This  rule  as  to  diplomatic  immunity 

has  been  recognized  from  ancient  times. 

3.  Admi-  By    "admiralty    and    maritime"    jurisdiction    is    meant 
raity  cases,    authority    over    cases    which    relate    to    American    vessels 

travelling  on  the  high  seas  or  in  the  navigable  waters  of  the 

1  "The  jurisdiction  of  the  courts  of  the  United  States  is  properly  com- 
mensurate Avith  every  right  and  duty  created,  declared,  or  necessarily 
implied  by  and  under  the  constitution  and  laws  of  the  United  States  " 
(Irvine  vs.  Marshall,  20  Howard,  558) .  But  the  right  must  be  a  substantial 
and  not  merely  an  incidental  one  in  order  to  warrant  its  assertion  in  the 
federal  courts.  "It  must  appear  on  the  record  .  .  .  that  the  suit  is  one 
which  does  really  and  substantially  involve  a  dispute  or  controversy  as 
to  a  right  which  depends  on  the  construction  of  the  constitution  or  some 
law  or  treaty  of  the  United  States,  before  jurisdiction  can  be  main- 
tained." CaUeman  vs.  Peoria,  etc.  R.  R.  Co.,  179  U.  S.  335. 


THE  JUDICIAL  POWER  "OF  THE  UNITED  STATES     347 

United  States.  Such,  for  example,  are  controversies  regard-' 
ing  seamen's  wages,  damages  due  to  collisions,  and  offences 
committed  on  shipboard.  In  England  for  many  generations 
prior  to  1787  admiralty  courts  had  exercised  jurisdiction  over 
cases  connected  with  sea-borne  commerce.  Admiralty  law 
is  a  distinct  branch  of  jurisprudence,  differing  both  in  sub- 
stance and  in  procedure  from  the  common  law  and  equity 
of  the  regular  courts.  Both  for  that  reason  and  because 
foreign  commerce  was  placed  within  the  regulating  power 
of  the  federal  government,  it  ^-was  deemed  wise  to  vest 
admiralty  jurisdiction  exclusively  in  the  federal  courts. 

Likewise  the  federal  courts  have  jurisdiction  whenever  4.  Cases 
the  United  States  is  one  of  the  parties  to  a  suit,  or  whenever 
the  contestation  is  between  two  states  of  the  Union,  or  states 
between  a  state  and  a  citizen  of  another  state".     On  this 
last  point  the  wording  of  the  constitution  at  the  time  of  its  Union  is 
adoption  gave  ground  for  difference  of  opinion.     Did  the  aparty- 
words   "between  a  state  and   citizens   of  another  state" 
intend  that  suits  might  be  brought  in  the  federal  courts 
whenever  an  outsider  wished  to  proceed  against  a  state? 

An  issue  on  this  matter  was  soon  raised,  and  in  a  note-  The 
worthy  decision  the  Supreme  Court  ruled  trjtat  such  suits 
might  be  maintained.1  This  ruling  was  a  surprise,  because  state, 
it  had  been  openly  asserted,  when  the  constitution  was 
before  the  states  for  acceptance,  that  no  state  would  be 
amenable  to  the  suit  of  an  individual  without  its  own  con- 
sent. But  the  Supreme  Court  in  making  its  adjudication 
merely  followed  the  literal  wording  of  the  constitution  which 
plainly  allowed  such  construction  if  it  did  not  actually  require 
it.  The  decision  was  regarded  by  the  states  as  an  impair- 
ment of  their  legal  sovereignty,  since  the  principle  that  a 
sovereign  state  is  not  liable  to  suit  without  its  own  consent 
had  been  a  maxim  of  public  law  from  time  immemorial. 
Blackstone  had  spoken  of  it  as  "  a  necessary  and  fundamental 
principle."  Popular  resentment  against  this  new  subordi- 
nation of  the  states  to  outside  jurisdiction  was  aroused, 
and  five  years  later  (1798)  the  Eleventh  Amendment  was  t 
added  to  the  constitution,  making  the  situation  clear  for 
the  future. 

1  Chisholm  vs.  Georgia,  2  Dallas,  419, 


348      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

Eleventh 
Amend- 
ment. 


May  state 
officials  be 
sued  in  the 
federal 
courts  ? 


5.   Contro- 
versies 
between 
citizens 
of  differ- 
ent states. 


By  the  terms  of  this  amendment  the  federal  courts  are 
expressly  forbidden  to  take  cognizance  of  any  suit  brought 
against  a  state  "by  a  citizen  of  another  state,  or  by  citizens  or 
subjects  of  any  foreign  state."  Any  one  who  desires  to  sue 
a  state  must  bring  his  suit  in  the  state's  own  courts  and  these 
courts  will  not  entertain  such  suits  unless  they  have  been 
authorized  to  do  so  by  the  state  laws,  in  other  words  unless 
the  state  has  consented.  All  the  states  do,  as  a  matter  of 
fact,  permit  themselves  to  be  sued  in  their  own  courts  under 
prescribed  conditions.  A  state  may  be  sued  in  the  federal 
courts  only  by  the  United  States  or  by  another  state  of  the 
Union. 

While  the  doctrine  that  no  state  may  be  sued  in  the 
federal  courts  by  either  its  own  citizens,  by  citizens  of  an- 
other state,  or  by  foreign  citizens  is  now  well  established, 
the  question  whether  the  officials  of  a  state  are  equally 
immune  is  by  no  means  so  unclouded.  In  general  the 
Supreme  Court  in  such  cases  has  endeavored  to  determine 
whether  the  suit  is  really  against  the  state  through  one  of 
its  officers,  or  whether  it  is  against  a  state  officer  as  an  in- 
dividual. In  the  former  case  it  will  not  assume  jurisdiction ; 
in  the  latter  it  has  maintained  its  right  to  entertain  suits 
against  those  who  "while  claiming  to  act  as  officers  of  the 
state,  violate  and  invade  the  personal  and  property  rights 
of  the  plaintiffs  under  color  of  authority."  l 

Finally,  the  jurisdiction  of  the  federal  courts  extends 
to  all  controversies  between  foreign  and  American  citizens, 
and  between  citizens  of  different  states.  It  is  cases  of  this 
sort  that  bring  the  largest  grist  to  the  federal  mills.  A 
corporation  or  company  is  presumed  for  purposes  of  juris- 
diction to  be  a  citizen  of  the  state  in  which  it  was  chartered 
or  incorporated,  although  it  may  be  doing  the  larger  part  of 
its  business  in  other  states.2  When  a  corporation  brings  a 
suit,  or  when  a  suit  is  brought  against  it,  the  chances  are, 
therefore,  that  the  other  party  to  the  suit  will  not  be  of  its 
own  citizenship,  in  which  case  the  issue  will  come  to  the 
federal  courts.  The  same  is  true  of  foreign  companies 
doing  business  in  the  United  States.  They  sue  and  are  sued 
in  the  federal  tribunals.  National  banks  are  for  purposes  of 
1  Hagood  vs.  Southern,  117  U.  S.  52.  2  See  above,  p.  84. 


THE  JUDICIAL  POWER  OF  THE  UNITED  STATES     349 

jurisdiction  designated  by  law  as  citizens  of  the  states  in 
which  they  are  located.  All  other  corporations  chartered 
by  Congress,  unless  their  charters  provide  to  the  contrary, 
may  invoke  the  jurisdiction  of  the  federal  courts. 

'  The  authority  of  the  federal  courts  covers  a  wide  area  Summary, 
and  the  amount  of  judicial  business  which  comes  before 
them  is  very  large.  Summarizing  it  all,  one  can  say  that 
many  suits  arise  in  the  federal  courts  because  of  their 
subject-matter,  that  is  because  they  concern  matters  dealt 
wrEn"  by  the  constitution,  laws/ or  treaties  of  the  United 
States;  that  others  arise  there  because  of  the  sovereign 
character  of  the  parties  concerned,  as  for  example  suits  to 
which  the  United  States  is  a  party  or  in  which  two  states 
are  contestants ;  while  yet  others  go  to  the  federal  courts 
because  the  suitors  are  not  of  the  same  citizenship. 

So  much  for  the  jurisdiction  of  the  federal  courts.     What  .The  law 
is  the  law  which  they  administer  ?     Speaking  broadly,  it  is 
made  up  of  two  branches,  the  common  law  and  statutes,  njnited 
The  common  law  is  the  oldest  branch  of  American  law.  states- 
Its  development  began  in  mediaeval  England  when  there 
were  few  written  rules  and  when  the  royal  courts  decided 
cases,  so  far  as  they  could,  in  accordance  with  the  unwritten 
usages  or  customs  of  the  people.     Gradually  the  decisions 
of  the  courts  in  such  matters  grew  more  and  more  uniform, 
until    this    judge-made    law    or   body    of   usages    became 
"  common "  to  the  whole  realm  of  England,  although  it  had 
never  been  enacted  as  the  law  of  the  land  by  any  parliament 
or  other  law-making  body.     It  is  not  to  be  assumed,  how- 
ever, that  the  common  law  stood  unstirred  and  changeless  its 
on    its    mediaeval    pedestal.      Developing    in    accordance 
with  the  needs  of  civilization,  it  slowly  broadened  down 
from  precedent  to  precedent.      It  adapted  itself  through 
the  centuries  to  the  genius  of  the  Anglo-Saxon  race.     In 
the  course  of  time,  moreover,  this  whole  system  of  common 
law  was  reduced  to  written  form  by  great  text-writers  or 
commentators,  Glanvil,  Bracton,  Coke,  Littleton,  and  Black 
stone.1 

During  the  colonial  period  the  common  law  followed  the     j 

1  The  best  general  account  of  this  development  is  that  given  in  Black- 
stone's  Commentaries  on  the  Laws  of  England,  §  3. 


The  two 
branches 
of  law : 
(a)  The 
common 


n 

»• 

•-\ 


350      THE  GOVERNMENT  OF  THE  UNITED  STATES 

its  develop-)  English  flag  across  the  Atlantic.      Its  principles  and  pro- 
America        cedure  were  applied  by  the  judges  in  the  American  colonies. 
vThe  Declaration  of  Rights  adopted  by  the  first  Continental 
! Congress  in  1774  spoke  of  it  as  a  heritage.     "The  respective 
-colonies/7  it  asserted,  "are  entitled  to  the  common  law  of 
England."     When  the  thirteen  colonies  shook  off  British 
political  control,  therefore,  they  did  not  root  out  the  common 
law.     It  remained,  and  still  persists,  as  the  foundation  of  the 
I  legal  system  in  the  nation  and  in  all  the  states  but  one.1 
I  Only  in  Louisiana  did  the  common  law  fail  to  get  an  initial 
•  foothold.     There,  through  the  colonization  of  the  country 
by  the  French,  the  jurisprudence  of  France  became  the 
basis.     Even  in  Louisiana,  however,  the  system  of  trial  by 
jury  and  other  common  law  institutions  have  had  a  pro- 
found effect  upon  the  judicial  system. 

(6)  statu-         But  although  the  common  law  of  England  remains  the 
tory  law.       basis  of  the  American  legal  system,  it  has  ever  kept  growing 
and  changing,  widening  and  narrowing,  in  the  New  World 
as  in  the  Old.     This  steady  transformation  of  the  American 
legal  system  has  been  accomplished  in  part  by  judicial  de- 
cisions but  in  larger  measure  by  the  enactment  of  statutes 
I  which  have  modified  or  even  supplanted  the  rules  of  com- 
!  mon  law  on  many  matters.     A  statute  or  act  of  a  legis- 
~\  lature  may  merely  reenact  with  slight  changes  what  has  been 
I  the  common  law,  or  it  may  set  the  rules  of  the  common 
uaw  on  any  point  entirely  aside.     Where  the  common  law 
land  a  statute  are  inconsistent  the  latter  always  prevails, 
its  extent.         Statutory  law,  as  has  been  indicated,  is    law  made  by 
fan  established  law-making  body.     It  may  be  framed  by  a 
|  constitutional  convention,  in  which  case  we  call  it  a  con- 
stitution.    A  constitution  is  of  the  nature  of  statutory  law, 
supreme  statutory  law.     By  far  the  greater  part  of  statu- 
tory law  is  made,  however,  by-  the  regular  legislative  bodies, 
by  Congress,  or  by  the  state  legislatures.     The  output  of 
these  bodies  is  called  laws,  acts,  or  statutes.     These  enact- 
ments supplement  or  alter  the  common  law  as  the  case  may 
be.     The  total  production  of  statutory  law  by  Congress  and 
by  forty-eight    state  legislatures  is  of  great  proportions, 

1  The  standard  American  treatise  on  common  law  principles  is  O.  W. 
Holmes,  The  Common  Law  (Boston,  1881). 


THE  JUDICIAL  POWER  OF  THE  UNITED  STATES     351 

hence  this  branch  of  the  law  now  forms  by  far  the  larger 
part  of  American  jurisprudence ;  but  the  underlying  prin- 
ciples are  still  provided  by  the  common  law. 

The  constitution  speaks  of  the  federal  courts  as  being  Equity. 
entitled   to   jurisdiction   "in   law   and   equity."     What   is  Whatitis- 
equity?     To  explain  the  substance,  procedure,  and  limita- 
tions of  equity  jurisprudence  would  take  far  more  space 
than   could  be  accorded  to  that   subject  in  any  general 
treatise  on  American  government.     The  layman  thinks  of 
"equity"  as  something  inseparably  associated  with  abstract 
justice  and  conscience,  but  equity  as  administered  by  thej 
courts  is  merely  a  formal  set  of  rules  which  must  be  applied] 
with  an  unfaltering  hand,  even  as  laws  are  applied. 

The    origins    of    equity    are    interesting.     In    mediaeval  its  origin. 
England  there  grew  up,  side  by  side  with  the  common  law,j 
a  system  of  rules  administered  by  a  special  royal  court,! 
the  Court  of  Chancery,  which  aimed  to  give  redress  to! 
individuals  in  cases  where  the  common  law  afforded  suchi 
redress  inadequately  or  not  at  all.     This  Court  of  Chancery 
was  the  "keeper  of  the  king's  conscience"  and  its  inter- 
vention at  the  outset  was  confined  to  the  granting  of  relief 
from  the  legal  consequences  of  accident  or  mistake.     Every 
such   case  was  adjudged   on  its  own  merits.     Gradually, 
however,  definite  principles  or  rules  were  evolved  to  cover  |its  develop- 
all  cases  of  the  same  sort.     In  the  course  of  time  these  |ment- 
rules  were  reduced  to  written  form ;    and  taken  together  I 
they  became  known  as  equity. 

Equity  came  to  the  American  colonies  with  the  common  | 
law.     It  was  retained  after  the  Revolution  and  has  been 
developed.  To-day  both  law  and  equity  are  administered  by 
the  same  federal  courts.     The  differences  between  the  two 
are  both  numerous  and  technical,  but  in  general  equity  ap- 
plies only  to  certain  classes  of  civil  actions  and  never  to 
criminal  cases  ;  its  procedure  is  simpler ;   a  jury  is  not  ordi- 
narily used  to  determine  the  facts  at  issue,  and  its  remedies 
are  more  direct.     A  suit  at  law,  for  example,  is  a  request  for  its  nature, 
an  award  of  damages,  a  petition  in  equity  usually  asks  for 
a  decree  or  for  an  injunction,  that  is,  for  an  order  specifically 
compelling  a  person  to  do  or  not  to  do  a  thing.     It  is  charac-i 
teristic  of  equity  that  it  deals  directly  with  persons  or  acts 


352      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Inter- 
national 
law  as 
adminis- 
tered by 
the  courts. 


Congress 
controls 
the  pro- 
cedure 
of  the 
federal 
courts. 


in  personam,  while  the  law  in  civil  actions  deals  chiefly  with 
material  things  at  issue,  or  acts  in  rem.  Over  some  matters 
equity  has  exclusive  jurisdiction ;  over  others  its  jurisdiction 
is  concurrent  with  that  of  the  law.  Within  the  first  category 
redress  must  be  sought  at  equity ;  in  the  latter  there  is, 
under  certain  limitations,  the  option  of  equity  procedure. 

The  federal  courts,  within  the  fields  of  jurisdiction  allotted 
to  them  by  the  constitution,  administer  both  common  and 
statutory  law,  and  equity  as  well.  The  common  law 
applied  by  the  federal  courts  is  the  common  law  of  the 
states.1  The  statutes  which  they  administer  are  for  the 
most  part  acts  of  Congress  but  very  frequently  (as  in  the 
case  of  controversies  between  two  states  or  between  citizens 
of  different  states)  the  work  of  the  federal  courts  is  con- 
cerned with  the  interpretation  and  application  of  either  the 
common  law  or  the  statutes  of  the  states.  In  such  cases, 
if  the  state  courts  have  already  given  an  interpretation  of 
the  state  law  concerned,  the  federal  courts  will  ordinarily 
accept  such  interpretation.  So  far  as  they  are  applicable, 
the  federal  courts  also  apply  the  recognized  rules  of  inter- 
national law  when  cases  involving  that  branch  of  juris- 
prudence arise.  "The  law  of  nations/'  said  Marshall  in 
one  of  his  decisions,  "is  part  of  the  law  of  the  land."  2 

The  procedure  of  the  federal  courts,  including  their 
rules  of  evidence,  the  regulations  concerning  appeals,  and  all 
other  matters  relating  to  their  actual  work  are  for  the  most 
part  left  by  the  constitution  to  the  discretion  of  Congress. 
These  matters  are  covered  to  some  extent  by  the  Judiciary 
Act  of  1789  and  by  the  various  amendments  to  that  statute, 
all  of  which  were  revised  and  codified  by  a  general  law  in 
1911.  On  many  points  of  detail  Congress  has  empowered 
the  courts  to  make  their  own  rules  of  procedure.3 

The   constitution,   however,    contains   many   limitations 

1  "There  is  no  body  of  federal  common  law  separate  and  distinct  from 
the  common  law  existing  in  the  several  states,  in  the  sense  that  there 
is  a  body  of  statute  law  enacted  by  Congress   separate  and   distinct 
from  the  body  of  statute  law  enacted  by  the  several  states."     Western 
Union  Tel  Co.  vs.  Call  Publishing  Co.,  181  U.  S.,  92. 

2  The  Nereide,  9  Cranch,  388. 

8  A  revision  of  equity  procedure  was  made  a  few  years  ago ;  a  revision 
of  the  procedure  in  cases  at  law  is  also  needed. 


THE  JUDICIAL  POWER  OF  THE  UNITED  STATES     353 

upon  this  power  of  Congress  to  regulate  the  procedure  in  the  But 
federal  courts,  limitations  designed  to  insure  fair  trials  and  to 
to  preclude  injustice  to  any  of  the  parties.  These  limita-  limita- 
tions, which  are  to  a  large  extent  set  forth  in  the  Billof  tlons* 
Rights,  relate  to  such  matters  as  grand  jury  hearings,  jury 
trials,  promptness  and  publicity  in  judicial  proceedings, 
double  jeopardy, 'self-incrimination, the  issue  of  warrants, 
and  the  nature  of  punishments.1  They  apply  to  the  federal 
courts  only. 

No  one  may  be  held  to  trial  in  a  federal  court  for  any  Nature  of 
"  capital  or  otherwise  infamous  crime  unless  on  a  present-  Jjj)^.llimta 
ment  or  indictment  of  a  grand  jury."       A  grand  jury  is  a  (a)  the 
body  "of  men,  not  exceeding  twenty-three  in  number,  selected  need  of 
by  lot  or  by  some  other  established  procedure,   and  sworn  f^  action, 
to  discharge  impartially  the  duty  of  investigating  all  alleged  what  the 
offences  which  may  be  brought  to  their  attention  by  the  j8™^ 
prosecuting  officers  of  the  government.     It  conducts  an  in-  and  does, 
quest  or    investigation,  not  a  trial.     If  it  finds  that  there 
is  a  prima  facie  case  against  any  person,  it  returns  an  indict- 
ment  against  him   and   he   is  held  for   trial.     If,   on  the 
other  hand,  it  finds  no  reasonable  ground  for  holding   a 
person   to   trial,    it   returns   a    "no   bill"   and  he  is   dis- 
charged.3 

In  all  criminal  cases  (except  impeachments)  and  in  all  (6)  the  re- 
civil  suits  at  common  law,  where  the  amount  involved  is  oJ^™ent 
more  than  twenty  dollars,  the  constitution  requires -that  the  trial.  .< 
trial  shall  be  by  jury.4     This  jury,  in  criminal  cases,  must  be 
selected  from  the  state  and  district  in  which  the  crime  is 
alleged  to  have  been  committed.    If  the  offence  is  committed 

1  Amendments   I-X.     See   T.  M.  Cooley,   Constitutional   Limitations 
(7th  ed.,  Boston,  1903),  passim,  and  F.  Lieber,  Civil  Liberty  and  Self- 
Government  (3d  ed.,  Philadelphia,  1911). 

2  Amendment  vi.     An  "otherwise  infamous  crime"  has  been  construed 
to  be  one  to  which  a  penalty  of  imprisonment  for  more  than  one  year  is 
attached.     The  constitution  makes  an  exception  to  the  grand  jury  require- 
ment in  the  case  of  the  military  and  naval  forces.     The  distinction  between 
presentment  and  indictment  is  now  of  no  practical  importance. 

3  G.  J.  Edwards,  The  Grand  Jury  (Philadelphia,  1906). 

4  Article  iii,  Section  2 ;  also  Amendment  viii.     It  is  not  necessary  that 
all  such  trials  in  the  lowest  court  shall  be  by  jury ;  it  is  sufficient  if  the  ac- 
cused has  the  right  of  appeal  from  such  tribunal  to  a  higher  court  which 
provides  a  jury.     The  constitutional  right  to  a  jury  trial  is  one  which  may 
be  waived  in  any  case  by  the  consent  of  both  parties. 

2l 


354      THE   GOVERNMENT  OF  THE  UNITED  STATES 

outside  the  limits  of  any  state,  the  trial  may  be  held  and 
the  jury  selected  wherever  Congress  shall  by  law  direct. 
No  fact,  moreover,  when  tried  and  determined  by  a  jury, 
may  be  reexamined  in  any  court  otherwise  than  according 
to  the  rules  of  common  law,  that  is  to  say  a  higher  court 
sitting  without  a  jury  cannot  set  aside  conclusions  of  fact 
reached  by  a  jury  in  a  lower  court.  In  such  cases  it  can  only 
hear  appeals  on  points  of  law. 

What  a  A  trial  jury,  or  petit  jury  as  it  is  sometimes  called,  is  a 

*™ral  .g  body  of  twelve  qualified  persons,  selected  either  by  lot  or 
and  does.  in  accordance  with  other  legally  established  methods,  and 
sworn  to  try  impartially  a  particular  case,  rendering  a  true 
verdict  thereon  in  accordance  with  the  evidence.  It  is 
usually  required  that  persons  called  for  jury  service  shall 
be  qualified  voters  but  there  is  no  necessary  connection 
between  the  right  to  vote  and  the  obligation  of  jury  service. 
Certain  classes  of  persons  are  exempted  by  law  from  the 
obligation,  including  physicians,  attorneys,  public  officers, 
teachers,  and  so  on.  Persons  selected  for  service  at  each 
term  of  the  court  are  called  veniremen  or  talesmen,  and  from 
among  them  the  twelve  jurors  are  selected  after  due  inquiry 
has  been  made  concerning  their  impartiality  and  competence. 
Each  party  to  the  trial,  plaintiff  and  defendant,  has  the  right 
to  challenge  any  venireman  for  stated  cause.  The  right  to 
challenge  peremptorily /that  is,  without  assigning  any  cause, 
is  also  granted  under  certain  limitations.  The  selection  of 
the  jury  is  complete  when  twelve  persons,  against  whom  no 
valid  objection  or  peremptory  challenge  is  interposed,  have 
been  duly  sworn. 

Functions  The  jury  hears  such  evidence  as  the  presiding  judge  per- 
»f  the  jury.  m^g  ^  ^e  preseirte(i.  The  admissibility  of  evidence  is  a 
matter  of  law  for  the  judge,  and  not  for  the  jury,  to  decide. 
The  value  of  evidence,  when  once  admitted,  however,  is  a 
matter  of  fact  for  the  jury  to  determine.  Most  suits  at  law 
resolve  themselves  into  questions  concerning  the  relative 
credibility  of  evidence  submitted  by  the  opposing  sides. 
When  the  evidence  has  been  presented  and  the  arguments 
of  counsel  heard,  the  judge  instructs  or  charges  the  jury  on 
their  legal  duties  and  on  matters  of  law  only,  with  no  com- 
ments upon  the  weight  of  the  evidence.  Jury  verdicts  must 


THE  JUDICIAL  POWER  OF  THE  UNITED  STATES     355 

be  unanimous.     If  a  jury  fails  to  reach  unanimity  a  dis-  NO  reopen- 
agreement  is  reported  and  no  verdict  or  judgment  can  be  f^Jts* 
rendered  except  after  another  trial.     A  presiding  judge  may  except  by 
set  aside  a  unanimous  verdict  if  he  finds  that  the  jury  has 
disregarded  his  rulings  on  points  of  law,  or  if  he  is  satisfied 
that  the  verdict  is  clearly  unsupported  by  the  evidence,  or 
if  there  has  been  any  serious  irregularity  in  the  methods  by 
which  the  jurors  have  reached  their  verdict.     In  such  cases/ 
the  presiding  judge  cannot  himself  render  a  different  verdict, 
but  merely  orders  a  new  trial.1  - 

Certain  essentials  of  all  trials  in  the  federal  courts  are  made  (c)  other 
mandatory  by  the  constitution.  It  is  required  that  trials  fo^J££ies 
shall  be  "speedy  and  public,"  that  a  person  charged  with  trials, 
crime  shall  "be  informed  of  the  nature  and  cause  of  the 
accusation";  that  he  shall  "be  confronted  with  the  wit- 
nesses against  him"  and  shall  "have  compulsory  process 
for  obtaining  witnesses  in  his  favor,"  but  no  person  in  any 
criminal  case  may  be  compelled  to  be  a  witness  against 
himself.  Finally,  an  accused  person  is  entitled  to  have  the 
assistance  of  counsel  in  his  defence.2  "Excessive  bail  shall 
not  be  required,  nor  cruel  and  unusual  punishments  in- 
flicted." 3  No  warrants  may  be  issued,  except  upon  prob- 
able cause  supported  by  oath  and  definitely  describing  the 
place  to  be  searched  or  the  persons  to  be  arrested.4  All 
these  requirements  are  imposed  by  the  supreme  law  of  the 
land  and  Congress  has  no  power  to  set  any  of  them  aside. 
Let  it  be  repeated,  however,  that  they  apply  to  the  federal 
administration  of  justice  only  and  have  no  relation  to  the 
procedure  of  the  state  courts.  But  most  of  the  state  con- 
stitutions impose  similar  limitations  upon  their  own  courts. 

The  constitutional  protection  of  all  accused  persons  (d)  the 
against  second  jeopardy  requires  a  word  of  explanation.  j^,^ 
"Nor  shall  any  person,"  the  provision  recites,  "be  subject  second 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  J 
limb."1  The  application  of  this  rule  is  that  where  a  person 
accused  of  crime  has  been  tried  and  acquitted,  he  may  not 

1  For  a  discussion  of  jury  procedure,  see  S.  E.  Baldwin,  American 
Judiciary  (N.  Y.,  1914),  Ch.  xii. 

2  Amendment  vi.  »  Amendment  viii. 
4  Amendment  iv.  6  Amendment  v. 


,  356      THE  GOVERNMENT  OF  THE  UNITED  STATES 

be  again  tried  for  the  same  offence.  It  matters  not  if  new 
evidence  has  been  discovered;  the  verdict  of  acquittal  is 
conclusive  and  cannot  be  reopened.  When  an  accused 
person  is  acquitted,  the  government  has  no  right  of  appeal 
to  any  higher  court  against  such  verdict.  But  if  an  accused 
is  convicted  an  appeal  may  be  taken  in  most  cases  on  his 
behalf.  Instances  arise  occasionally  in  which  the  same  act 
may  be  made  the  basis  of  two  distinct  accusations,  as  for 
example  the  wilful  passing  of  counterfeit  money,  which  is 
both  a  statutory  offence  under  the  laws  of  the  United  States 
and  a  fraud  under  the  laws  of  a  state.  In  such  cases  the 
acquittal  on  one  charge  is  not  a  bar  to  trial  on  the  other. 
In  general,  however,  an  acquittal  in  connection  with  any 
act  relieves  an  accused  from  all  further  criminal  liability 
in  connection  with  that  act. 

Conclusion.  The  insertion  of  these  various  limitations  in  the  Bill 
of  Rights  shows  the  jealousy  with  which  Americans  in 
the  closing  years  of  the  eighteenth  century  regarded  the 
fundamental  rights  of  the  citizen.  These  were  the  fruit 
of  struggle  and  sacrifice  during  many  centuries.  It  was 
not  thought  safe  to  take  any  chance  of  their  being  swept 
away  by  some  arrogant  Congress  in  days  to  come. 


CHAPTER  XXV 

THE  SUPREME  COURT  AND  THE  SUBORDINATE  COURTS 

THE  regular  tribunals  of  the  United  States  consist  of  a  Names  of 
Supreme  Court,  nine  circuit  courts  of  appeals  (one  for  each  ^eral 
of  nine  circuits  into  which  the  country  is  divided),  and  eighty  courts, 
district  courts.     In  addition  there  are  two  special  courts, 
namely,  the  Court  of  Claims  and  the  Court  of   Customs 
Appeals.     The  courts  of  the  District  of  Columbia,  the  courts 
of  Hawaii,  of  Alaska,  and  of  the  insular  possessions  are  also 
federal  courts  inasmuch  as  these  territories  are  completely 
under  the  control  of  the  national  government. 

The  Supreme  Court  of  the  United  States  is  composed  of  a  The 
chief  justice  and  eight  associate  justices,  each  appointed  by 
the  President  with  the  consent  of  the  Senate  to  hold  office  how  con- 
during  good  behavior.1     No  justice  may  be  removed  except  stltuted- 
by  impeachment.     The  Supreme  Court  meets  at  Washington 
and  its  sessions  usually  last  from  October  until  May.     It  has 
its  own  court  officials  and  makes  its  own  rules  of  procedure,  its  origi- 
With  the  exception  of  two  classes  of  controversies,  namely, 
those  involving  ambassadors  or  other  public  ministers,  and 
those  to  which  a  state  is  a  party,  all  matters  heard  before  the  dlctlon- 
Supreme  Court  come  to  it  from  lower  federal  courts  or  from 
state  courts.     In  the  two  instances  mentioned  the  Supreme 
Court  has  original  jurisdiction.     The  exercise  of  original 
jurisdiction  is,  however,  very  uncommon. 

The  Supreme  Court,  when  in  session,  meets  in  the  Capitol  How  its 
at  noon  on  each  week-day  except  Saturdays.     Its  sessions  are 
mainly  devoted  to  hearing  the  oral  arguments  of  attorneys, 

1  For  its  history  and  organization,  see  H.  L.  Carson,  History  of  the 
Supreme  Court  of  the  United  States  (2  vols.,  Philadelphia,  1902),  and 
W.  W.  Willoughby,  The  Supreme  Court  of  the  United  States  (Baltimore, 
1890). 

357 


358      THE  GOVERNMENT  OF  THE  -UNITED  STATES 


may  come 
before  it : 


1.   By 

original 

suit. 


2."  By 
removal. 


3.   By 
appeal. 


who  subsequently  file  printed  briefs  for  the  justices  to  study. 
On  Saturday  of  each  week  the  justices  confer  upon  the  cases 
which  have  been  argued ;  the  various  points  presented  to 
them  in  the  oral  arguments  and  in  the  printed  briefs  are 
discussed,  and  a  decision  is  reached  by  majority  vote.  The 
chief  justice  then  designates  one  of  his  associates  to  write 
the  court's  opinion  in  full.1  When  this  has  been  prepared 
there  is  a  further  discussion,  with  such  changes  in  the  word- 
ing as  may  be  decided  upon,  and  the  document  is  then 
handed  down  to  be  printed  as  the  decision  of  the  court.  Any 
justice  who  dissents  from  the  decision  of  the  court  may  write 
a  dissenting  opinion  and  have  it  printed  also ;  or  several 
justices  may  join  in  submitting  a  dissenting  opinion.  If  a 
justice  should  agree  with  the  decision  of  the  majority, 
although  not  agreeing  with  the  reasons  for  it,  he  may  write 


a  "concurring  opinion." 


Cases  may  be  brought  before  the  Supreme  Court  in  any 
one  of  three  ways,  by  original  suit  there,  by  the  removal 
of  a  case  from  a  state  court,  or  by  appeal.  The  original 
jurisdiction  of  the  highest  tribunal  is  limited,  as  has  been 
said,  to  two  classes  of  controversies  which  arise  but  rarely. 
Jurisdiction  by  removal  is  much  more  common.  Whenever 
a  suit  is  brought  in  a  state  court  and  one  of  the  parties 
believes  that  because  of  its  subject-matter,  or  the  diverse 
citizenship  of  the  suitors,  or  for  any  other  legal  reason  it 
ought  to  be  tried  in  a  federal  court  he  is  privileged  to  ask 
its  removal  thereto.  When  so  removed  it  may  go  directly 
to  the  Supreme  Court,  but  more  often  it  will  be  transferred 
to  one  of  the  lower  federal  courts. 

Most  cases  come  before  the  Supreme  Court  by  appeal 
either  from  a  state  court  or  from  a  subordinate  federal 
tribunal.  The  usual  process  of  appeal  is  by  writ  of  error. 
A  writ  of  error  is  a  formal  order  by  which  a  superior  tribunal 
instructs  a  subordinate  court  to  transmit  to  it  the  record  of 
any  case  which  has  been  decided  in  the  court  below.  The 
suitor  who  secures  such  a  writ  is  then  called  "the  plaintiff 
in  error"  and  his  opponent  becomes  "the  defendant  in 
error"  no  matter  what  their  respective  positions  may  have 
been  originally. 

1  In  some  cases  the  chief  justice  may  himself  write  the  opinions. 


THE  SUPREME  COURT  AND  SUBORDINATE  COURTS  359 

The  popular1  notion  that  any  one  not  satisfied  with  the  Not  ail 
decision  of  the  highest  tribunal  of  his  own  state  may  carry  j^fes  may 
his  case  before  the  Supreme  Court  of  the  nation  is  far  from  appealed, 
being  in  accord  with  the  facts.     No  case  may  be  appealed 
from  state  to  federal  jurisdiction  except  where  the  inter- 
pretation of  the  constitution,  statutes,  or  treaties  of  the 
United   States   becomes   involved,    and   more   particularly 
where  some  right,  privilege,  or  immunity  guaranteed  by 
the  federal  constitution  is  in  jeopardy.     Most  controversies 
which  begin  in  the  state  courts,  end  there.     If,  however,  a 
case  is  carried  through  the  state  courts  and  an  appeal  is  per- 
mitted, this  appeal  goes  directly  to  the  Supreme  Court  of 
the  United  States.     No  subordinate  federal  court  has  any 
authority  to  hear  and  determine  an  appeal  from  the  state 
courts. 

The  amount  of  business  which  comes  before  the  Supreme  The 
Court  is  very  large.     It  is  not  uncommon  to  find  a  thousand  Assure 
cases  upon  the  docket  when  its  session  begins  in  the  autumn.  Supreme 
To  keep  pace  with  this  work  the  court's  adjudications  must 
maintain  an  average  of  about  thirty  cases  a  week,  which 
means  a  great  deal  of  drudgery  in  the  studying  of  briefs  and 
the  writing  of  decisions.     In  printed  form  these  decisions 
make  up  three  large  volumes  each  year.1 

The  Supreme  Court  began  its  work  in  1790  with  John  Jay  Landmarks 
as  its  first  chief  justice.     He  had  with  him  five  associate  g1^^ 
justices,  more  than  were  really  needed  to  handle  the  small  Court's 
amount  of  business  which  came  before  the  court.     At  its  history- 
first  meeting  no  cases  appeared ;  the  court  appointed  a  clerk 
and  then  adjourned  for  lack  of  anything  else  to  do.     During 
the  first  ten  years  of  its  history  the  court  decided  only  six 
cases  involving  questions  of  constitutional  law,  and  when 
John  Marshall  became  chief  justice  in  1801  there  were  all  its 
together  only  ten  cases  awaiting  him  on  the  docket.     Thus 
far  the  court  had  not  exercised  any  great  influence  on  the 
nation's   political   development.     Its   most   important   de- 

1  The  official  reports  of  the  Supreme  Court  were  published  in  each  year 
prior  to  1875  under  the  name  of  the  reporter ;  since  that  date  they  have 
appeared  as  successive  volumes  of  United  States  Reports.  The  names  of 
these  court  reporters  are  as  follows :  Dallas  (1790-1800) ;  Cranch  (1801- 
1815);  Wheaton  (1816-1827);  Peters  (1828-1843);  Howard  (1843- 
1860) ;  Black  (1861-1862) ;  ^Wallace  (1863-1874). 


360      THE  GOVERNMENT  OF  THE  UNITED  STATES 


John 
Marshall. 


His  con- 
stitutional 
views  and 
influence. 


cision  upon  a  constitutional  question  had  been  set  aside  by 
the  action  of  the  states  in  adopting  the  Eleventh  Amend- 
ment.1 The  prestige  of  the  court  was  small,  and  a  position 
upon  its  bench  during  these  early  years  was  regarded  as  less 
alluring  than  the  post  of  a  governor  or  senator.  Chief 
Justice  Jay,  for  example,  resigned  from  the  Supreme  Court 
in  1795  to  serve  as  governor  of  New  York. 

During  the  next  few  years  the  position  of  chief  justice  was 
bandied  about  somewhat;  but  in  1801  John  Marshall  was 
given  the  reins  and  he  held  them  firmly  for  more  than  three 
decades.2  Born  in  Virginia,  he  saw  service  as  a  captain  in 
the  Revolutionary  army  when  only  twenty-one  years  of  age. 
While  still  a  young  man  he  studied  law  and  entered  politics, 
like  so  many  other  young  Southerners  of  his  day.  Although 
not  one  of  those  who  framed  the  federal  constitution,  Mar- 
shall was  a  member  of  the  Virginia  convention  which  ratified 
it  in  1788,  and  was  on  intimate  terms  with  the  founders  of 
the  Virginia  dynasty.  He  declined  the  post  of  Attorney- 
General  in  Washington's  cabinet,  but  in  1798  was  elected  to 
Congress  and  in  1800  became  Secretary  of  State  under 
President  Adams.  This  post  he  gave  up  to  become  chief 
justice.  Marshall  was  a  Federalist  in  the  original  and 
genuine  sense,  a  believer  in  the  need  of  strengthening  the 
Union,  and  he  lost  no  opportunity  of  making  his  influence 
effective  in  that  direction.  When  he  became  chief  justice 
the  powers  of  the  national  government  under  the  constitu- 
tion were  not  sharply  defined ;  scarcely  a  clause  of  the 
constitution  had  been  subjected  to  judicial  interpretation. 
To  the  work  of  making  it  "efficient,"  however,  Marshall 
and  his  associates  promptly  set  their  hands.  A  succes- 
sion of  great  decisions  during  the  next  thirty  years  not 
only  cleared  the  constitutional  horizon  but  strengthened 
the  arm  of  the  national  government  and  incidentally  raised 
the  court  to  a  position  of  great  authority. 

Marshall  was  not  only  a  great  jurist  but  a  man  of  firm 

1  Chisholm  vs.  Georgia  (1793).     See  above,  p.  347. 

2  On  Jay's  resignation  John  Rutledge  was  named  chief  justice  and  as- 
sumed the  office,  but  was  not  confirmed.     Then  the  post  was  offered  to 
William  Gushing,  who  was  already  an  associate  justice,  but  he  declined  it. 
Oliver  Ellsworth  was  then  (1796)  appointed  and  confirmed.     He  resigned 
in  1799. 


THE  SUPREME  COURT  AND  SUBORDINATE  COURTS  361 

and  clear  convictions.  He  had  the  advantage  of  writ-  The  man 
ing  upon  a  clean  slate.  There  was  as  yet  no  long  train 
of  decisions  to  hamper  the  court's  freedom,  and  of  course 
no  doctrine  of  stare  decisis  when  there  were  no  decisions  to 
follow.  Yet  the  period  through  which  he  guided  the  Su- 
preme Court  was  a  critical  one  in  many  ways.  The  chief 
problems  which  came  up  for  adjudication  were  drawn  reeking 
from  the  shambles  of  partisan  warfare,  and  the  court  on 
more  than  one  occasion  had  to  take  grounds  which  aroused 
strong  resentment.  State  officials  everywhere  looked  with 
suspicion  upon  what  seemed  to  be  a  judicial  encroachment 
upon  state  powers.  During  his  thirty-four  years  of  service 
Marshall  wrote  the  decisions  of  the  court  upon  no  fewer 
than  thirty-six  important  questions  of  constitutional  law.1 
In  these  he  not  only  laid  the  foundations  but  raised  the 
whole  framework  of  federal  jurisprudence. 

Two  principles  of  constitutional  construction  Marshal 
enunciated  and  maintained.     In  the  first  place  he  insis 
that  every  power  claimed  by  Congress  must  be  articulated  tutionai 
to  some  provision  of  the  constitution,  the  onus  of  finding  an 
express  or  implied  grant  of  power  being  imposed  upon  the/ 
federal  authorities.     But,  in  the  second  place  (and  here  j&\ 
where  the  doctrine  of  broad  construction  obtained  full  play),  \ 
Marshall  held  that  once  any  grant  of  power  was  found  it 
should  be  interpreted  liberally,  giving  to  Congress  all  reason- 
able discretion  as  to  how  the  authority  should  be  exercised. 
Both  these  principles  are  in  full  force  and  effect  to-day. 

"No  other  man,"  says  Lord  Bryce,  "did  half  so  much  Lord 
either  to  develop  the  constitution  by  expounding  it,  or  to 
secure  for  the  judiciary  its  rightful  place  in  the  government 
as  the  living  voice  of  the  constitution.  No  one  vindicated 
more  strenuously  the  duty  of  the  court  to  establish  the 
authority  of  the  fundamental  law  of  the  land,  no  one  ab- 
stained more  scrupulously  from  trespassing  on  the  field  of 
executive  administration  or  political  controversy.  The 
admiration  and  respect  which  he  and  his  colleagues  won  for 

1  These  include  such  landmarks  as  Marbury  vs.  Madison,  McCulloch 
vs.  Maryland,  Gibbons  vs.  Ogden,  and  the  Dartmouth  College  Case.  See 
J.  P.  Cotton  Jr.,  The  Constitutional  Decisions  of  John  Marshall  (2  vols., 
N.  Y.,  1905). 


362   THE  GOVERNMENT  OF  THE  UNITED  STATES 


the  court  remain  its  bulwark :  the  traditions  which  were 
formed  under  him  and  them  have  continued  in  general  to 
guide  the  action  and  elevate  the  sentiments  of  their  succes- 


The 
court's 
power  to 
declare 
laws  un- 
constitu- 
tional. 


1.   This 
power  is 
now 
beyond 
dispute. 


2.   Its 

exercise 

has 

proved 

beneficial.1 


sors.",1 

It  was  under  Marshall's  leadership  that  the  court  first 
undertook  to  assert  its  place  as  the  guardian  of  the  con- 
stitution, with  authority  to  invalidate  any  law,  whether 
state  or  federal,  that  contravened  the  provisions  of  this 
instrument.  By  so  doing  the  court  assumed  a  power 
which  was  not  expressly  committed  to  it  by  the  constitution, 
a  power  which  even  at  the  present  day  some  students 
of  political  science  believe  to  have  been  a  usurpation. 
Whether  the  court's  action  was  originally  the  exercise  of  a 
right  or  a  usurpation  is  not  an  appropriate  question  to  argue 
here;2  but  in  the  light  of  present-day  constitutional  juris- 
prudence three  propositions  are  beyond  the  pale  of  contro- 
versy. 

In  the  first  place  the  Supreme  Court  has  long  since  made 
good  its  claim.  No  lawyer  would  to-day  deny  its  absolute 
and  entire  right  to  nullify  any  law  that  conflicts  with  the  fed- 
eral constitution  no  matter  by  whomsoever  enacted.  That 
is  now  as  well  settled  as  any  point  of  law  can  be.  Congress, 
the  state  legislatures,  and  the  country  have  tacitly  accepted 
this  doctrine  for  more  than  one  hundred  years. 

Second,  the  action  of  the  court  in  thus  asserting  the 
doctrine  of  judicial  supremacy  has  proved  beneficial  in  its 
results.  Had  the  court  assumed  a  different  attitude  the 
American  constitutional  system  would  have  become  a  hydra- 
headed  monstrosity ;  it  would  never  have  gained  that 
strength  and  regularity  of  operation  which  it  has  to-day. 
For  the  preservation  of  individual  liberty  there  must  be  an 

1  The  American  Commonwealth,  i,  268.     The  best  short  biography  of 
Marshall  is  James  Bradley  Thayer's  John  Marshall  (Riverside  Biographi- 
cal Series,  Boston,  1901). 

2  For  a  full  discussion  of  it  see  C.  A.  Beard,  The  Supreme  Court  and 
the    Constitution    (N.  Y.,  1912) ;    C.  G.  Haines,  The  American  Doctrine 
of  Judicial  Supremacy   (N.  Y.,   1914) ;   E.   S.    Corwin,    The  Doctrine  of 
Judicial  Review  (Princeton,  1914) ;    A.  C.  McLaughlin,  The  Courts,  the 
Constitution  and  Parties  (Chicago,  1912) ;    Brinton  Coxe,  Judicial  Power 
and  Unconstitutional  Legislation  (Philadelphia,  1893),  and  J.  B.  Thayer, 
The  Origin  and  Scope  of  the  American  Doctrine  of  Constitutional  Law 
(Boston,  1893). 


THE  SUPREME  COURT  AND  SUBORDINATE  COURTS  363 

arbiter  between  the  governing  powers  and  the  governed. 
The  integral  maintenance  of  a  proper  balance  of  authority 
between  the  nation  and  the  states  also  demands  it ;  and  so 
does  the  preservation  of  the  adjustment  between  the  execu- 
tive and  legislative  organs  of  government.  "The  constitu- 
tional powers  of  the  courts  constitute  the  ultimate  safeguard 
alike  of  individual  privilege  and  of  governmental  prerogative. 
It  is  in  this  sense  that  our  judiciary  is  the  balance-wheel  of 
our  whole  system." 

Third,  the  power  now  exercised  by  the  Supreme  Court  of  3.  it  is 
the  United  States  is  one  which  is  not  actively  asserted  by  any 
other  tribunal  in  the  world.     No  court  in  any  other  land  has 
ventured  to  nullify  a  law  enacted  by  the  highest  legislative 
authority.     No    court    has    any    such    authority   in    other 
democracies  such  as  Great  Britain,  France,  or  Switzerland 
Even  in  the  South  American  republics,  in  Argentina  and 
Chile,  for  example,  where  there  are  supreme  courts  modelled 
on  the  American  pattern,  no  national  law  has  ever  been 
declared  unconstitutional  by  them. 

While  the  power  exercised  by  the  Supreme  Court  of  the 
United  States  is  unique  in  the  history  of  government,  it  has 
great  merits.  No  part  of  the  American  scheme  of  government, 
indeed,  has  worked  out  to  better  purpose.  It  means  that 
Americans  refer  to*an  impartial  tribunal,  made  up  of  emi- 
nent jurists,  men  habituated  to  reflection  and  straight-think- 
ing, the  great  questions  of  governmental  jurisdiction  which 
are  so  liable  to  excite  the  political  passions  of  the  people.  If 
the  rulings  of  this  body  are  not  always  agreeable  to  the  pop- 
ular sentiments  of  the  day  it  is  because  neither  judicial  nor 
public  opinion  is  infallible.  The  doctrine  set  forth  by  Jeffer- 
son in  the  Virginia  and  Kentucky  resolutions  that  "  as  in  all 
other  cases  of  compact  among  parties  having  no  common 
judge,  each  party  (presumably  each  state)  has  an  equal  right 
to  judge  for  itself "  would  have  utterly  disintegrated  the  na- 
tion. That  absurd  theory  has  long  since  been  ridiculed  out  of 
existence.  If  these  constitutional  questions,  moreover,  had 
been  left  for  settlement  to  the  Senate,  as  some  proposed  in 
the  constitutional  convention,  they  would  never  have  had  a 

1  Woodrow  Wilson,  Constitutional  Government  in  the  United  States 
(N.  Y.,  1911),  p.  142. 


364      THE  GOVERNMENT  OF  THE  UNITED  STATES 


What  it 
needs  for 
continued 
success. 


Its 

abstention 

from 

political 

opinions. 


chance  of  being  determined  on  their  merits.  The  political 
majority  would  always  have  settled  them  to  its  own  advan- 
tage. The  Supreme  Court,  when  all  is  said,  represents  as 
near  an  approach  to  a  strictly  non-partisan  body  as  the 
makers  of  any  government  have  ever  been  able  to  devise. 

But  the  smooth  working  of  this  judicial  supremacy  predi- 
cates among  the  people  what  Professor  Dicey  calls  "the 
spirit  of  legalism."  A  better  phrase  would  be  "popular 
respect  for  judicial  decisions."  Such  an  attitude  exists  in 
the  United  States,  and  its  importance  can  hardly  be  over- 
estimated. The  country  accepts  the  rulings  of  the  Supreme 
Court,  whatever  they  may  be,  without  outbursts  of  resent- 
ment or  accusations  of  unfairness.  This  is  not  because 
Americans  have  an  exaggerated  respect  for  the  wisdom  or 
impartiality  of  their  highest  tribunal,  but  because  they  have 
a  traditional  admiration  for  the  constitution  itself  and  for 
the  scheme  of  free  government  which  that  document  estab- 
lishes. "Not  having  a  king  to  venerate,"  a  facetious 
European  once  remarked,  "the1  American  people  lavish 
their  reverence  upon  a  constitution." 

But  if  that  be  true,  it  is  small  wonder.  The  reign  of  the 
constitution  has  been  long  in  the  land.  No  monarch  was 
ever  so  full  of  years  or  saw  so  much  accomplished  in  his  day. 
It  commands  the  veneration  of  the  people  because  they  have 
found  it  to  be  no  mere  welter  of  words  set  down  on  paper  but 
a  vital  factor  in  the  life  and  development  of  the  nation.  The 
Supreme  Court  has  had  no  small  part  in  making  it  so.  It  was 
the  judges  who  drew  water  from  the  rock  by  commanding 
arid  phraseology  to  yield  forth  national  strength  and  power. 
No  people  have  an  intuitive  readiness  to  accept  judicial  deci- 
sions which  are  not  to  their  liking.  They  must  be  schooled  to 
it  by  habit.  It  is  a  genuine  compliment  to  the  American 
judiciary  to  say  that  a  spirit  of  legalism  prevails  among  the 
people. 

Another  reason  why  the  Supreme  Court  has  gained  in  such 
large  measure  the  confidence  of  the  people  is  to  be  found  in  its 
consistent  refusal  to  decide  political  questions.  On  various 
matters  which  have  come  before  it  the  court  has  ruled  that 
questions  of  public  policy  must  be  left  within  the  discretion 
of  Congress  and  the  decisions  of  this  body  accepted  as  final. 


THE  SUPREME  COURT  AND  SUBORDINATE  COURTS  365 

In  one  notable  instance  the  Supreme  Court  held  that  it  was 
for  Congress  and  the  President,  and  not  for  the  judiciary,  to 
decide  which  of  two  rival  governments  within  the  same  state 
ought  to  have  recognition.1  In  another  case  it  declined  to 
render  any  opinion  as  to  the  length  of  time  during  which  the 
military  occupation  of  Cuba  might  continue,  holding  that 
matter  to  be  entirely  "the  function  of  the  political  branch 
of  the  government."  2 

The  foundations  of  the  Supreme  Court's  prestige  and 
powers  were  firmly  laid  in  Marshall's  time.  Marshall  died 
in  1835.  His  successor,  Roger  B.  Taney  of  Maryland,  was  Marshall's 
a  man  of  different  stripe,  a  disciple  of  Andrew  Jackson,  and  ^c^Sgr : 
a  stanch  exponent  of  the  doctrine  of  states'  rights.  Under  Taney. 
Taney's  guidance  there  was  a  reaction  against  the  centralizing 
of  powers  in  the  federal  government,  although  the  work  of  the 
court  under  Marshall  was  now  too  firmly  fixed  to  be  seriously 
dislodged.  Taney's  most  notable  decision  was  that  de- 
livered in  the  Dred  Scott  Case  (1857).  In  this  case  the  court 
applied  rules  of  strict  construction  to  the  powers  of  Congress 
even  within  the  territories  of  the  United  States,  holding  that 
Congress  had  no  right  to  prohibit  any  citizen  from  owning 
slaves  in  such  areas.  "No  word  can  be  found  in  the  con- 
stitution," said  Taney,  "which  gives  Congress  a  greater 
power  over  slave  property,  or  which  entitles  property  of  that 
kind  to  less  protection  than  property  of  any  other  descrip- 
tion." In  some  of  its  decisions  during  the  early  years  of  the 
Civil  War,  moreover,  the  court  placed  obstacles  in  the  way 
of  a  full  exercise  of  the  national  government's  powers, 
notably  in  its  decision  that  the  President  could  not  of  his 
own  authority  suspend  the  privilege  of  the  writ  of  habeas 
corpus.3 

Taney  in  1864  gave  way  to  Salmon  P.  Chase  of  New  Salmon  p. 
Hampshire,  after  a  service  of  twenty-eight  years.     Chase  Chase- 
had  served  during  the  first  three  years  of  the  Civil  War  as 
a  member  of  Lincoln's  cabinet.     During  his  term  of  nine 
years  as  chief  justice  the  problems  of  concluding  the  war 
and  of  reconstruction  sent  many  vital  questions  before  the 

1  Luther  vs.  Borden,  7  Howard,  1. 

2  Neely  vs.  Henkel,  180  U.  S.  109. 

3  Ex  parte  Merry  man,  Taney's  Reports,  246  (1861). 


366      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Summary 
of  the 
Supreme 
Court's 
history. 


Some 
eminent 
associate 
justices. 


Supreme  Court  for  adjudication.  But  in  the  main  the  court 
upheld  the  hands  of  the  national  government,  especially 
in  practically  sustaining  the  constitutionality  of  the  recon- 
struction acts.1  Since  this  troublous  era  the  course  of  the 
great  tribunal  has  been  relatively  serene.  Its  traditions  are 
well  settled  and  it  has  been  able  to  continue  without  mishap 
the  work  of  steadily  weaving  together  the  golden  strands  of 
liberty  and  law. 

In  summary  fashion,  then,  the  history  of  the  Supreme 
Court  may  be  divided  into  three  periods.  The  first,  which 
extended  from  its  establishment  in  1789-1790  to  the  death 
of  Marshall  in  1835,  may  be  called  the  period  of  nationalism, 
the  era  in  which  the  constitutional  provisions  relating  to  the 
powers  of  the  national  government  were  construed  to  that 
government's  upbuilding.  The  second  period,  extending 
from  1835  to  the  Civil  War,  may  be  called  the  era  of  states' 
rights,  an  epoch  in  which  the  court  for  the  most  part  inter- 
preted strictly  the  constitutional  powers  of  the  national 
government.  Finally,  in  the  third  period,  extending  from 
the  Civil  War  to  the  present  time,  there  has  been  a  return  on 
the  whole  to  the  policy  of  broad  interpretation,  particularly 
with  reference  to  the  regulating  powers  of  Congress  in  relation 
to  industry  and  commerce. 

But  whatever  its  tendencies  at  any  time,  the  powers  of 
constitutional  construction  possessed  by  the  court  are  great. 
"The  provisions  of  the  constitution/'  as  Justice  Holmes 
once  remarked,  "are  not  mathematical  formulas  having 
their  essence  in  their  form ;  they  are  organic  living  institu- 
tions, transplanted  from  English  soil.  This  significance  is 
vital,  not  formal ;  it  is  to  be  gathered  not  merely  by  taking 
the  words  and  a  dictionary,  but  by  considering  their  origin 
and  the  line  of  their  growth."2 

Not  a  few  great  jurists  have  adorned  the  supreme  bench 
of  the  United  States  during  its  thirteen  decades  of  history. 
Marshall  was  the  primate  of  them  all,  and  his  generation 
knew  not  his  equal  anywhere.  In  the  court's  earlier  years 
it  numbered  among  its  chief  and  associate  justices  several  of 
the  "Fathers"  themselves,  John  Rutledge,  James  Wilson, 

1  Texas  vs.  White,  7  Wallace,  700  (1868). 

2  Gompers  vs.  United  States,  233  U.  S.  604. 


THE  SUPREME  COURT  AND  SUBORDINATE  COURTS  367 

Oliver  Ellsworth,  John  Blair,  and  William  Paterson.  Later, 
during  the  first  half  of  the  nineteenth  century,  Joseph  Story  Joseph 
served  his  long  term  of  thirty-four  years  (1811-1845).  story> 
Story  may  rightly  be  regarded  as  the  classic  expounder  of 
the  constitution;  and  his  commentaries  have  not  ceased 
to  hold  the  admiration  of  legal  scholars  at  the  present 
day.1  Next  to  Marshall,  moreover,  Story  had  the  larg- 
est influence  in  shaping  that  notable  series  of  Supreme 
Court  decisions  which  reared  the  structure  of  American 
constitutional  law.  When  Marshall  and  Story  were  to- 
gether they  formed  a  great  team.  Two  others  whose 
names  stand  out  conspicuously  on  the  roll  of  justices  are 
Stephen  J.  Field  and  Horace  Gray.  The  former  served  a  Field 
term  of  thirty-four  years,  from  1863  to  1897 ;  the  latter  was 
in  office  from  1881  to  1902.  Both  were  men  of  rare  legal 
erudition  and  uncommon  personality.  It  is  a  great  art  to 
write  decisions  which  combine  law,  logic,  and  literature. 

The  Supreme  Court  in  session  is  an  impressive  body,  im- 
Each  day  at  noon, the  justices,  wearing  their  gowns  of  black  character  of 
silk,  walk  in  formal  procession  from  their  consultation  rooms  the  court, 
to  their  chamber,  which  is  the  old  hall  used  by  the  Senate  in 
years  when  that  body  was  small.     The  atmosphere  of  this 
chamber  is  one  of  great  dignity.     Only  a  few  spectators  are 
ever  present  and  silence  is  rigidly  insisted  upon.     There  is 
no  jury  in  appellate  cases,  of  course,  and  no  examining  of 
witnesses.     The  court  merely  listens  to  the  arguments  of 
counsel,  the  rule  being  that  no  oral  argument  may  be  longer 
than  one  hour  and  a  half  except  with  the  court's  special 
permission.     In   addition    each   justice   reads   the   printed 
briefs  submitted  by  both  sides  and  also  the  official  record  of 
the  case  in  the  courts  below. 

No  decision  or  opinion  on  any  constitutional  question  is  NO 
ever  given  by  the  Supreme  Court  until  some  case  actually  "advisory" 

•  i  .  •        opinions 

involving  the  determination  of  the  point  comes  before  it.  ever  given. 
Even  then  the  court  will  not  rule  on  the  constitutional  aspect 
of  the  case  if  the  decision  can  be  made  upon  any  other  ground. 
Washington,  in  1793,  submitted  to  the  Supreme  Court  cer- 
tain general  questions  concerning  rights  of  the  federal  gov- 
ernment, but  the  justices  declined  to  express  any  opinions 
1  See  above,  p.  44,  note. 


368      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

doctrine 
of  stare 
deems. 


It  is 

not  always 

followed. 


save  in  actual  controversies  duly  brought  before  them.  In 
some  of  the  states,  however,  provision  is  made  for  such  ad- 
visory judicial  opinions  to  be  rendered  by  the  highest  state 
tribunal  to  the  governor  or  legislature.1  The  federal  rule,  on 
the  whole,  has  much  to  be  said  in  its  favor  because  the 
frequent  submission  of  hypothetical  questions  to  the  court 
would  place  an  additional  burden  upon  an  already  overloaded 
tribunal.  Advisory  judicial  opinions,  moreover,  are  ren- 
dered without  hearing  the  arguments  on  either  side,  and 
they  have  no  binding  force  even  upon  the  judges  who  render 
them.  It  would  be  an  advantage,  of  course,  if  Congress 
could  always  know  in  advance  whether  a  proposed  measure 
would  be  constitutional,  but  this  gain  would  hardly  offset  the 
disadvantages  of  the  advisory  system.  Reasonably  good 
advice  upon  points  of  constitutional  law,  moreover,  can 
always  be  had  by  Congress  by  asking  the  opinion  of  the 
Attorney-General. 

When  the  Supreme  Court  has  once  established  a  principle 
of  law  in  any  case  actually  before  it,  such  ruling  becomes  a 
precedent  and  will  generally  be  adhered  to  in  future  cases  of 
the  same  nature.  This  is  known  as  the  doctrine  of  stare 
decisis.  The  court  has  not  often  altered  any  constitutional 
stand  taken  by  it,  although  there  have  been  a  few  notable 
cases  of  such  reversal.  For  instance  it  decided  in  1880  that 
an  income,  tax  might  be  levied  by  Congress  without  appor- 
tionment among  the  states,  but  fourteen  years  later  it  ruled 
that  such  taxes  must  be  apportioned.2  On  one  occasion  the 
court  decided  that  Congress  might  not  by  law  make  paper 
money  a  legal  tender  in  payment  of  debts  incurred  before 
the  passage  of  such  legislation.3  A  year  later  it  reversed 
this  decision  and  held  that  Congress  did  have  power  to  take 
such  action.4  More  commonly,  however,  the  court  finds 
it  possible  to  reconstruct  or  modify  a  prior  decision  by  some 
means  other  than  a  frank  reversal.  No  two  cases  are  exactly 
alike,  and  a  later  case  can  usually  be  distinguished  in  some 
particular  from  an  earlier,  thus  affording  an  opportunity 
for  the  modification  of  a  rule. 


1  See  below,  p.  413. 

3  Hepburn  vs.  Griswold,  8  Wallace,  603. 

*  Knox  vs.  Lee,  12  Wallace,  457. 


2>  See  above,  p.  225. 


THE  SUPREME  COURT  AND  SUBORDINATE  COURTS  369 

The  liberty  to  reverse  its  decisions  on  questions  of  con-  inadvis- 
stitutional  law,   whenever  the  urgent   occasion  to   do   so  oMoiLw- 
requires,  is  one  of  the  things  which  enable  the  Supreme  ing  it 
Court  to   endow  the   constitution  with   dynamic   quality.  to°8tnctly- 
In  cases  strictly  affecting  private  intercourse  it  is  essential 
that  the  rules  of  law  be  not  subject  to  frequent  and  capricious 
change.     That   is  why  the   doctrine   of  stare  decisis  was 
evolved  by  lawyers  and  courts.     But  where  issues  of  public 
policy  are  concerned  the  rigid  application  of  that  doctrine 
would  tend  to  slow  up  the  machinery  of  political  and  social 
progress.     In  the  administration  of  the  law  as  in  other  fields 
of   human   activity   the   reverence   for   precedents,    which 
too  often  are  merely  the  embalmed  prejudices  of  a  past 
generation,  may  easily  be  carried  to  an  absurdity. 

Changes  in  the  organization  and  procedure  of  the  Supreme  Some  pro- 
Court  have  been  suggested  from  time  to  time.     One  sug-  ^har^es 
gestion  is  that  the  number  of  judges  be  increased  and  the  in  the 
court   divided  into   sections   after  the  European  fashion,  ^fn^nd" 
Different  sections  or  groups  of  justices,  say  three  or  five  in  procedure 
each  group,  would  then  deal  with  civil  controversies,  criminal  gjlt^ne 
appeals,  admiralty  and  maritime  affairs,  and  so  on.     This  Court, 
would  no  doubt  expedite  business,  but  it  would  destroy  that 
uniformity  in  the  application  of  the  laws  which  was  one  of 
the  prime  reasons  for  the  Supreme  Court's  original  establish- 
inent.     The  entire  court  would  still  have  to  pass  on  all  the 
important  questions  of  constitutional  interpretation,  and  for 
that  reason  would  probably  develop  into  a  cumbrous  tri- 
bunal of  appeal  from  the  decisions  of  its  own  sections.     The 
burden  upon  the  court,  as  at  present  constituted,  might 
easily  be  reduced  by  placing  more  obstacles  in  the  way  of 
frivolous  appeals. 

By  the  Judiciary  Act  of  1789  which  organized  the  Su-  The  sub- 
preme  Court  a  system  of  subordinate  federal  courts  was  also  ^eraf6 
created,   consisting  of  Circuit  and  District  Courts.     This  courts. 
Act  was  at  various  times  amended,  and  the  original  scheme 
underwent  many  important  changes  during  the  next  century 
until  the  judicial  legislation  became  extremely  complicated. 
In  1911,  accordingly,  the  whole  legislation  was  revamped  by 
Congress  in  the  so-called  Judicial  Code  which  went  into      ^ 
operation  on  January  1,  1912.     This  code  is  now  the  ground- 
2s 


370      THE  GOVERNMENT  OF  THE  UNITED  STATES 

work  of  the  entire  system  of  federal  courts  subordinate  to 
the  Supreme  Court. 

The  Next  below  the  Supreme  Court  comes  the  Circuit  Court 

Courtof  of  APPeals-  Tne  territory  of  the  United  States  is  divided 
Appeals.  into  nine  circuits,  each  circuit  containing  three  or  more 
states.  There  is  a  Circuit  Court  of  Appeals  for  each  of 
these  nine  circuits,  such  courts  having  from  two  to  four 
judges  according  to  the  amount  of  business  to  be  done.  In 
addition,  one  justice  of  the  Supreme  Court  is  assigned  to 
each  circuit,  but  in  practice,  these  justices  do  not  go  the 
circuits  at  all,  their  whole  time  being  taken  up  at  Washington. 
The  Circuit  Court  of  Appeals  in  each  circuit  holds  sessions 
at  various  cities,  hearing  appeals  from  the  District  Courts 
below.  In  many  cases,  where  the  issue  of  the  constitution- 
ality of  a  law  is  not  raised,  the  Circuit  Court  of  Appeals  has 
final  authority.  But  when  this  issue  is  raised,  as  it  is  in  a 
multitude  of  cases,  an  appeal  may  be  carried  to  the  Supreme 
Court. 

The  Then    come   the    federal    District    Courts.     The    entire 

Courts*  territory  of  the  United  States  is. divided  into  eighty  districts, 
each  state  constituting  at  least  one  district  and  the  more 
populous  states  having  two  districts  or  even  more  within 
their  boundaries.  New  York  State  is  divided  into  four 
districts.  Each  District  Court  has  its  own  judge  as  a  rule ; 
but  in  a  few  cases  one  judge  serves  two  districts  and  a  few 
districts  have  more,  than  one  judge.  Every  District  Court 
holds  several  sessions  every  year,  sometimes  sitting  in  more 
than  one  city  within  the  district.  It  is  a  court  of  first 
instance,  and  the  only  federal  court  in  which  a  jury  is  used. 
Every  district  has  its  United  States  district  attorney  and 
United  States  marshal,  appointed  by  the  President  with  the 
concurrence  of  the  Senate.  The  function  of  the  district 
attorney  is  to  act  as  the  representative  of  the  nation  in 
prosecutions  before  the  court.  The  marshal  executes  the 
court's  orders  and  judgments,  attends  to  the  service  of  its 
writs,  and  is  its  general  executive  officer.  Both  are  under 
the  direction  of  the  federal  Department  of  Justice.  Each 
District  Court  also  has  a  federal  commissioner  who  conducts 
the  preliminary  hearing  in  criminal  cases  and  decides  whether 
an  accused  shall  be  held  for  the  grand  jury.  Most  cases 


THE  SUPREME  COURT  AND  SUBORDINATE  COURTS  371 

under  federal  jurisdiction  are  entered  in  the  District  Courts 
and  the  great  majority  of  them  are  finally  disposed  of  there, 
only  a  small  percentage  going  thence  to  the  Circuit  Court  of 
Appeals  and  a  still  smaller  proportion  to  the  Supreme  Court. 

A  word  should  also  be  said  about  the  two  special  courts.  The 
The  Court  of  Claims,  established  in  1855,  consists  of  a  chief 
justice  and  four  associate  judges  appointed  by  the  President. 
Its  business  is  to  hear  and  determine  the  merits  of  all  claims 
against  the  federal  government,  such  as  claims  for  salaries 
due  or  for  supplies  delivered.     With   certain   restrictions 
there  is  a  right  of  appeal   to  the   Supreme    Court.     The 
other  special  court,  tjie  Court  of  Customs  Appeals,  is  a  The 
recent  creation,  dating  only  from  1909.     It  has  the  same  customs 
number  of  judges  as  the  Court  of   Claims  and  they  are  Appeals, 
similarly  appointed.     Its  function  is  to  serve  as  a  final  court 
of  appeal  in  all  controversies  regarding  the  administration  of 
the  tariff  laws,  as  for  example,  controversies  over  the  ap- 
praised valuation  of  goods,  the  proper  rate  of  duty  and  so 
forth. 

The   courts   of   the   District   of   Columbia,    of    Hawaii,  other 
Alaska,  Porto  Rico,  and  the  Philippines  are  also  federal  Courts1 
courts.     Their  judges  and  other  officers  are  appointed  by  in  the 
the  President  with  the  consent  of  the  Senate  and  their  juris-  terntones- 
diction  is  assigned  to  them  by  Congress.     Their  organization 
will  be  described  in  the  next  chapter.1 

In  all  the  federal  courts  the  judges  are  appointed  for  life 
or  during  good  behavior.  They  are  removable  only  by 
impeachment  before  the  Senate  of  the  United  States.2  Their 
salaries  may  not  be  diminished  during  their  tenure  of  office. 
The  rule  covering  these  matters  cannot  be  paraphrased  into  Protec- 
any  clearer  or  more  concise  language  than  that  of  the  con- 
stitution  itself:  "The  judges  both  of  the  supreme  and 
inferior  courts  shall  hold  their  offices  during  good  behavior, 
and  shall,  at  stated  times,  receive  for  their  services  a  com-  federal 
-pensation  which  shall  not  be  diminished  during  their  con-  courts- 
tinuance  in  office." 

1  For  a  word  on  the  short-lived  Commerce  Court,  see  above,  p.  258. 

2  On  this  and  related  subjects  see  the  discussion  in  W.  S.  Carpenter, 

Judicial  Tenure  in  the  United  States  (New  Haven,  1918) . 


CHAPTER  XXVI 


The 
United 
States 
as  a  colo- 
nizing 
power 


The  two 
periods 
of  ex- 
pansion: 


1.    within 
the  present 
boundaries. 


THE   GOVERNMENT  OF  TERRITORIES 

IT  is  not  customary  to  think  of  the  United  States  as  a 
colonizing  country,  yet  the  whole  history  of  the  nation  from 
1787  to  the  present  has  been  one  of  steady  territorial 
expansion.  The  area  of  the  original  thirteen  states  forms 
less  than  one-tenth  of  the  territory  which  is  under  the  flag 
of  the  United  States  to-day.  No  other  nation  has  relatively 
increased  its  territory  to  so  great  an  extent  and  colonized 
its  acquisitions  so  largely  with  its  own  people. 

The  history  of  American  expansion  may  be  divided  into 
two  periods.  First  there  is  the  era  extending  from  the 
close  of  the  Revolutionary  War  (1783)  to  the  year  1867. 
It  was  during  this  interval  that  the  United  States  acquired  by 
successive  treaties  with  Great  Britain,  France,  and  Spain 
all  the  land  included  in  the  Northwest  Territory  as  it  was 
then  called,1  in  the  Louisiana  Purchase,  and  in  Florida. 
During  this  interval  also,  the  nation  secured  by  conquest 
from  Mexico  and  by  the  admission  of  territories  which 
had  declared  their  independence  of  Mexico,  the  enormous 
areas  of  Texas,  the  Southwest,  and  the  Southern  Pacific 
slope.2  All  this  territory  was  contiguous;  it  included 

1  The  Northwest  Territory  was  acquired  by  the  Treaty  of  1783  and 
before  the  adoption  of  the  constitution  was  governed  by  the  provisions  of 
the  famous  Northwest  Ordinance  which  was  framed  in  1787  by  the  Con- 
gress of  the  Confederation.    In  1789,  on  the  establishment  of  the  new  na- 
tional government,  the  provisions  of  this  ordinance  were  re-enacted  into 
law  by  Congress.     See  William  MacDonald,  Select  Documents  Illustrative 
of  the  History  of  the  United  States,  1776-1861  (N.  Y.,  1907),  pp.  21-29; 
also  B.  A.  Hinsdale,  The  Old  Northwest,  the  Beginnings  of  Our  Colonial 
System  (2d  ed.,  Boston,  1899). 

2  A  general  account  of  these  various  additions  to  the  national  territory 
may  be  found  in   Edward   Bicknell,   The   Territorial  Acquisitions  of  the 
United  States  1787-1904  (3d  ed.,  Boston,  1904). 

372 


THE  GOVERNMENT  OF  TERRITORIES  373 

nothing  remote  from  lands  already  possessed,  and  its 
acquisition  did  not  impair  the  compactness  of  American 
territory.  All  of  it,  moreover,  is  territory  which  was 
intended  to  be  and  indeed  has  now  been  parcelled  into  states 
of  the  Union  with  full  rights  of  statehood.  The  expansions 
of  this  period  merely  represented  the  logical  rounding-out 
of  national  boundaries. 

The  second  period,  extending  from  1867  to  the  present  2.  outside 
time,  has  been  marked  by  territorial  acquisitions  much  less  ^lto 
extensive   and   of  a   different   sort.     By   the   purchase   of  insular 
Alaska  ^rom_  Russia  in  1867  the  United  States  acquired  its 
first  non-contiguous  possession.     This  precedent  was  not 
followed  by  any  further  ventures  into  distant  territories, 
however,   until   1898,  when  by   conquest  from  Spain  the 
Philippines,  Porto  Rico,  and  Guam  were  acquired ;  and  in 
the  same  year  Hawaii  was  annexed  at  the  request  of  its 
own  governm'ent.  .  In T900  a  treaty  with  Great  Britain  and 
Germany  gave  to  the  United  States  certain  islands  in  the 
Samoan  Archipelago,  and  in  1904  the  Panama  Canal  Zone 
came  virtually  into  American  hands  by  a  treaty  made  with 
the  new  Republic  of  Panama.     Finally,  in  1917,  the  Danish 
West  Indies  were  acquired  by  purchase. 

All  these  acquisitions  differed  from  those  of  the  preceding  Differ- 
period  in  that  they  are  separated  from  the  main  territory  £^see 
of  the  United  States  and  cannot  well  be  assured  of  any  the  two 
certain  admission  to  statehood  at  a  future  date.  They  are 
colonies  in  the  ordinary  sense  of  the  word,  although  for 
sentimental  reasons  they  are  designated  in  official 
phraseology  as  insular  possessions.  In  all  prior  expansion 
there  was  some  assurance  of  ultimate  incorporation  on  a 
basis  of  equality  with  the  states  already  in  the  Union,  but; 
since  1898  the  United  States  has  faced  the  practical  certainty 
that  for  many  years  to  come  its  jurisdiction  will  include 
two  classes  of  territory ;  one  constituting  the  United 
States  proper  with  its  people  enjoying  full  constitutional 
rights  and  privileges,  the  other  made  up  of  insular  possessions 
which  cannot  well  be  dealt  with  on  that  basis  but  can  only 
be  brought  by  gradual  stages  to  the  attainment  of  full  self- 
government.  "In  a  word,  whatever  may  be  the  theory, 
as  a  practical  condition  the  United  States,  through  these 


374      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  con- 
stitutional 
basis  of 
expansion. 


Constitu- 
tional 
questions 
connected 
without- 
lying  pos- 


acquisitions,  is  now  confronted  with  the  problem  of  govern- 
ing and  administering  dependent  or  colonial  possessions  in 
precisely  the  same  way  as  is  England  or  are  other  Euro- 
pean nations  that  have  deliberately  embarked  on  a  colonial 
policy."  1 

The  makers  of  the  constitution  foresaw  that  the  Union 
would  eventually  comprise  more  than  the  thirteen  original 
states.  Hence  they  made  provision  that  new  states  might 
be  admitted  by  Congress  and  that  any  territory  belonging 
to  the  United  States,  if  not  admitted  to  statehood,  should 
be  governed  in  such  way  as  Congress  might  decide.  The 
constitution  did  not,  however,  in  express  terms  bestow  on 
Congress  the  right  to  acquire  new  territory,  and  in  connec- 
tion with  the  Louisiana  Purchase  of  1803  it  was  urged  that 
Congress  had  no  such  right.  The  Supreme  Court  in  1810, 
however,  settled  this  question  by  asserting  the  doctrine 
that  the  United  States  as  a  nation  has  the  right  to  acquire 
territory  either  by  conquest  or  by  treaty  to  the  same  extent 
that  any  other  nation  has  that  right.2 

But  assuming  the  right  of  the  United  States  to  acquire 
territory  many  other  questions  arose  to  be  settled.  Is  the 
control  of  Congress  over  such  territory  complete  and  un- 
restricted, or  is  Congress  bound  there  by  all  the  limitations 
of  the  national  constitution?  Have  the  inhabitants  of 
insular  territories  the  constitutional  rights  of  American 
citizens,  the  right  to  freedom  of  speech,  to  assemble 
peaceably,  to  be  immune  from  unreasonable  searches  and 
seizures,  the  right  to  keep  and  bear  arms,  and  the  right  to 
trial  by  jury  ?  Is  a  Filipino  or  a  Porto  Rican  entitled  to  these 
rights  by  the  mere  fact  that  the  American  flag  flies  over  his 
islands?  And  what  about  the  operation  of  such  laws  as 
Congress  may  make?  Do  they  apply,  ex  proprio  motu,  to 
these  territories  or  do  they  apply  only  when  their  extension 
thereto  is  expressly  provided  for?  Does  a  tariff  law,  for 
example,  apply  only  to  merchandise  which  comes  into  the 
United  States  proper,  or  to  all  that  may  come  into  any 

1  W.  F.  Willoughby,  Territories  and  Dependencies  of  the  United  States 
(N.  Y.,  1905),  p.  8. 

2  Sere  vs.  Pilot,  6  Cranch,  332.     See  also  J.  K.  Hosmer,  The  History 
of  the  Louisiana  Purchase  (N.  Y.,  1902). 


THE  GOVERNMENT  OF  TERRITORIES  375 

territory  under  the  sovereignty  of  the  United  States?  All 
these  questions  have  come  before  the  Supreme  Court  at 
one  time  or  another  and  all  have  been  answered  by  that 
tribunal,  so  that*  the  constitutional  status  of  territories 
and  insular  possessions  is  now  determined  with  reasonable 
clearness. 

Summarizing  the  main  features  in  this  chain  of  judicial  The  rules 
decisions  one  may  lay  down  the  following  general  rules :  cLted0" 
The  power  of  Congress  over  the  territories  of  the  United/ by  the 
States    is   practically    complete.  "  The   inhabitants   of   the  £ 
insular  possessions  are  not  citizens  of  the  United  States 
unless  and  until  Congress  expressly  extends  citizenship  to 
them.     The  provisions  relating  to  the  rights  of  citizens,  for 
example  the  right  of  trial  by  jury,  do  not  extend  to  the 
inhabitants  of  these  territories  unless  and  until  Congress  so 
provides.     Congress,  however,  has  to  some  extent  made 
provision  in  this  direction.     As  respects  tariff  laws,  the 
Supreme  Court  has  held  that  duties  may  be  exacted  on 
commerce    between    the    United    States    and    its    insular 
possessions.1 

The    problem    of    citizenship    with    reference    to    Porto  status  of 
Ricans  and    Filipinos  is  even  yet.  however,  a  little  per-  FiliPinos 

i       •  rp,  r  ,  .  £  o       •         and  Porto 

plexmg.  Ihey  are,  of  course,  no  longer  subjects  of  Spam, 
nor  are  they  citizens  of  the  United  States.  What  is  their 
status  ?  International  law  has  coined  a  new  term  for  them. 
Porto  Ricans  and  Filipinos  are  now  called  "nationals".. of 
the  United  States.  This  means  that  they  are  entitled 
to  the  protection  of  the  United  States  government  and  to 
its  assistance  in  all  international  matters.  So  far  as  inter- 
national law  is  concerned  they  are,  accordingly,  American 
citizens  to  all  intents  and  purposes.  But  by  constitutional 
law,  the  law  of  the  United  States  itself,  they  are  not  citizens, 
and  are  not  entitled  to  the  privileges  and  immunities  of 
citizens  save  in  so  far  as  Congress  may  grant  such  rights  to 
them. 

Owing  to  a  diversity  in  local  conditions  among  the 
various  possessions  of  the  United  States,  no  attempt  has 

1  These  various  points  were  settled  by  the  decisions  rendered  in  a  series 
of  controversies  commonly  known  as  The  Insular  Cases.  See  especially 
De  Lima  vs.  Bidwell,  182  U.  S.  1,  and  Downes  vs.  Bidwell,  182  U.  S,  244. 


376      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Present 
govern- 
ment of 
American 
depend- 
encies : 

Hawaii 


How  ac- 
quired. 


Its  admin- 
istration 
to-day. 


Laws  and 
appropria- 
tions. 


ever  been  made  to  establish  a  uniform  scheme  of  govern- 
ment for  all  of  them.  Hawaii  is  at  present  the  only  insular 
possession  which  has  full  status  as  a  "territory,"  that  is  to 
say  the  territorial  status  enjoyed  by  the  various  western 
areas  of  the  United  States  before  they  were  admitted  to 
statehood.  Prior  to  1893  the  Hawaiian  Islands  had  a 
monarchical  form  of  government  with  a  native  dynasty. 
But  in  that  year  a  revolution  abolished  the  monarchy  and 
set  up  a  provisional  government  which,  in  turn,  gave  way 
to.  a  republic  in  1895.  Three  years  later  the  government 
of  the  Hawaiian  republic  applied  for  and  obtained  annexation 
to  the  United  States ;  and  in  1900  Congress  established  a 
territorial  government  in  the  islands. 

Under  this  arrangement  the  federal  government  at 
Washington  directly  controls  such  matters  as  fall  within  its 
province  on  the  American  continent,  for  example,  the 
postal  service,  the  collection  of  customs,  taxes,  and  excises, 
the  coinage,  and  the  national  banks.  On  the  other  hand, 
local  functions  in  Hawaii  are  controlled  by  its  own  territorial 
government  under  the  federal  government's  general  super- 
vision. The  territorial  governor  of  Hawaii  is  appointed  by 
the  President  of  the  United  States.  He  is  assisted  in 
executive  work  by  various  administrative  officials,  a  secre- 
tary, treasurer,  attorney-general,  and  so  on.  Then  there  is 
a  territorial  legislature  of  two  Houses.  Of  these  the  Sen- 
ate is  composed  of  fifteen  members  elected  from  the  four 
counties  and  serving  for  a  four-year  term,  while  the  House 
of  Representatives  consists  of  thirty  members  chosen  from 
the  six  representative  districts  into  which  the  islands  are 
divided.  All  persons  who  were  citizens  of  Hawaii  at  the 
time  of  its  annexation  (1898)  became  forthwith  citizens  of 
the  United  States.  At  present  the  voters  who  elect  the 
Senate  and  the  House  comprise  all  male  citizens  who  are  able 
to  speak,  read,  and  write  either  the  English  or  the  native 
language. 

Subject  to  the  general  control  of  Congress  the  Hawaiian 

legislature,  consisting  of  these  two  Houses,  makes  the  laws, 

I  determines  the  taxes,  and  provides  for  the  annual  expendi- 

'  tures.     The  governor  possesses  the  usual   right   of    veto, 

which  may  be  overridden  by  a  two-thirds  vote  of   both 


THE  GOVERNMENT  OF  TERRITORIES  377 

Houses.  There  is,  moreover,  an  important  provision  "that 
in  case  the  legislature  fails  to  pass  appropriation  bills  pro- 
viding for  payment  of  the  necessary  current  expenses  of 
carrying  on  the  government  and  meeting  its  obligations 
as  the  same  are  provided  for  by  the  then-existing  laws, 
the  governor  shall,  upon  the  adjournment  of  the  legisla- 
ture,] call  it  in  an  extra  session  for  the  consideration 
of  appropriation  bills  and  until  it  shall  have  acted  the 
treasurer  may  with  the  advice  of  the  governor  make  such 
payments  for  which  purpose  the  sums  appropriated  in  the 
last  appropriation  bills  shall  be  deemed  to  have  been 
reappropriated."  In  other  words  the  territorial  legislature 
cannot  use  its  control  of  expenditures  in  such  way  as  to 
coerce  the  executive  into  submission  by  stopping  the  wheels 
of  government.  Hawaii  also  has  its  own  territorial  courts, 
besides  a  federal  district  court.  The  territory  sends  one 
delegate  to  the  House  of  Representatives  at  Washington, 
but  he  has  no  vote. 

From  the  date  of  its  purchase  from  Russia  (1867)  until  Alaska. 
1884,  Alaska  was  not  given  any  system  of  territorial  govern- 
ment. It  was  kept  during  these  seventeen  years  directly 
under  the  control  of  the  national  authorities  at  Washington. 
In  1884,  however,  Congress  passed  an  act  establishing  a 
civil  government  for  Alaska  and  in  its  general  outlines  this 
has  remained  unchanged  to  the  present  day.  The  adminis- 
tration of  Alaska  is  in  charge  of  a  governor  appointed  by  the 
President.  A  legislature  was  established  in  1912.  The  ex- 
ecutive departments  at  Washington  still  control  various 
Alaskan  matters,  for  example,  the  system  of  education  is 
under  the  Secretary  of  the  Interior.  From  1884  to  1900 
the  general  laws  of  the  state  of  Oregon  were  applied  to 
Alaska  so  far  as  practicable  ;  but  in  the  latter  year  Congress 
provided  Alaska  with  a  special  code  of  laws  and  a  code  of 
civil  procedure.  Arrangements  have  been  made  whereby 
settlements  may  become  incorporated  as  towns,  and  may 
establish  a  system  of  elective  town  government. 

During  the  war  with  Spain  the  American  army  occupied  Porto 
Porto  Rico  and  in  the  two  years  following  the  withdrawal  R 
of  the  Spanish  forces  the  island  continued  under  military  - 
government.     People  do  not  always  realize  how  easy  it  is 


378      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

period  of 
military 
rule, 
1898-1900. 


Present 
govern- 
ment 
of  the 
island. 


for  an  army  to  provide,  out  of  its  own  resources,  all  the 
administrative  machinery  that  is  necessary  for  temporarily 
governing  a  conquered  territory.  The  commander-in-chief 
with  his  staff  transform  themselves  into  a  governor  and 
council ;  the  engineer  corps  provides  a  department  of  public 
works ;  the  paymaster's  department  takes  charge  of  the 
finances ;  the  medical  and  sanitary  corps  become  a  depart- 
ment of  public  health  ;  the  judge-advocate  sets  up  a  judicial 
system ;  the  military  police  take  over  the  work  of  policing, 
and  so  on.  To  say  that  Porto  Rico  was  for  two  years  under 
military  rule  does  not  mean,  therefore,  that  the  affairs  of  the 
island  were  crudely  or  arbitrarily  handled.  Quite  the  con- 
trary. The  system  of  military  rule  did  not  give  way  to  an 
organized  civil  government  because  it  was  found  to  be  in- 
efficient but  because  of  the  general  aversion  of  the  American 
people  to  continued  military  government  in  any  portion 
of  their  territory.1 

The  present  frame  of  Porto  Rican  government  has  its 
basis  in  the  Foraker  Act  of  1900.  At  the  head  of  the  island 
administration  is  a  governor  appointed  for  a  four-year 
term  by  the  President  with  the  assent  of  the  Senate.  He 
is  assisted  by  an  executive  council  which  consists  of  certain 
heads  of  the  island  departments,  ex  officio,  together  with 
"five  other  persons  of  good  repute/7  making  eleven  in  all.2 
At  least  five  of  these  eleven  must  be  natives  of  Porto  Rico. 
All  the  members  of  this  executive  council  are  appointed  by 
the  President  for  four-year  terms.  It  serves  both  as  an 
advisory  council  to  the  governor  and  as  the  upper  chamber 
of  the  Porto  Rican  legislature.  In  the  former  capacity  it 
acts  as  a  public  service  commission  regulating  the  rates  and 
service  of  all  companies  holding  franchises  (such  as  street 
railways,  lighting  plants,  and  telephones).  It  also  has  gen- 
eral supervision  over  the  borrowing  power  of  the  munici- 
palities ;  and  carries  out  many  details  committed  to  it  by 
the  legislature  as  a  whole. 

The  lower  chamber  of  this  legislature,  called  the  House 

1  L.  S.  Rowe,  The  United  States  and  Porto  Rico  (N.  Y.,  1904). 

2  The  heads  of  departments  are  the  Secretary,   Treasurer,  Auditor, 
Attorney-General,  Commissioner  of  the  Interior,  and  Commissioner  of 
Education.     They  are  appointed  by  the  President  of  the  United  States. 


THE  GOVERNMENT  OF  TERRITORIES  379 

of  Delegates,  consists  of  thirty-five  members,  five  from  each  The  legis- 
of  seven  representative  districts,  elected  by  the  voters  lature- 
every  two  years.  Porto  Rico  has  practically  manhood 
suffrage.  All  proposals  of  legislation  may  originate  in 
either  chamber ;  the  House  of  Delegates  has  no  monopoly 
in  the  introduction  of  financial  measures.  The  legislature 
may  levy  taxes  (except  taxes  on  exports)  and  may  authorize 
borrowing  on  the  credit  of  the  island.  It  also  determines 
the  expenditures,  but  since  1909  it  has  been  provided  that 
if  the  two  chambers  cannot  agree  on  appropriation  measures 
for  the  support  of  the  island  government,  the  governor  may  . 
himself  promulgate  a  budget  the  total  of  which  shall  not  j 
exceed  the  entire  appropriations  of  the  year  preceding. 
This  amendment  to  the  Foraker  Act  was  made  by  Congress 
because  a  serious  deadlock  between  the  two  chambers  on 
one  occasion  prevented  any  appropriations  being  made  at 
all.  Measures  of  every  sort,  to  be  effective,  must  be  accepted 
by  both  chambers  of  the  island  legislature.  The  governor 
has  the  customary  right  of  veto  subject  to  being  overridden 
by  a  two-thirds  vote  of  both  chambers.  Every  measure, 
after  it  has  been  enacted,  must  be  reported  to  Washington 
where  Congress  has  power  to  annul  it ;  but  such  annulments 
have  been  very  rare. 

Porto  Rico   has  its  own   system  of    courts,  the  judges  its 
of  the  higher  tribunals  being  appointed   by   the   President  c 
and  those  of  the  lower  courts  by  the  governor  of  the  island 
with  the  consent  of  the  executive  council.     There  is  also 
one  federal  District  Court  for  the  island.     All  the  judges 
hold  office  for  life. 

One  delegate  from  Porto  Rico,  elected  by  popular  vote,  The  Porto 
has  the  right  to  sit  in  the  House  of  Representatives  at  Jeie^te 
Washington,  but  has  no  vote  in  that  body.     Free  trade  in 
exists  between  the  island  and  the  United  States,  but  the  Congress- 
regular  United  States  tariff  laws  are  applied  in  Porto  Rico 
as  against  the  rest  of  the  world.     All  customs  duties  and 
internal  taxes  go  into  the  treasury  of  the  island. 

By  the  treaty  with  Spain  in  1898  the  Philippine  Islands  The 
were  ceded  to  the  United  States.     Military  rule  continued, 
however,  until  September  1,  1900.     During  this  interval  a 
commission  was  sent  to  the  island  to  study  conditions  and 


380      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  pre- 
liminaries 
of  civil 
govern- 
ment. 


The 
present 
frame  of 
adminis- 
tration. 


to  report  upon  a  system  of  civil  government  for  the  islands, 
and  its  recommendations  became  the  basis  of  later  action  by 
Congress.  Meanwhile,  President  McKinley  also  appointed 
a  civil  commission  to  serve  temporarily  as  a  legislative  body 
for  the  island  while  executive  powers  remained  vested  in 
the  military  governor. 

Up  to  1902  Congress  took  no  action  in  the  matter  of 
a  permanent  scheme  of  government  for  the  Philippines. 
The  President  controlled  the  administration  of  the  islands 
by  virtue  of  his  powers  as  commander-in-chief  of  the  army. 
But  in  order  to  remove  any  possible  doubts  as  to  the 
legality  of  this  situation,  Congress  in  March,  1901,  gave  the 
President  in  express  terms  "all  the  military,  civil  and 
judicial  powers  necessary  to  govern  the  Philippines  .  .  . 
until  otherwise  provided."  1  The  combination  of  military, 
executive,  and  civil  legislative  commission  continued,  how- 
ever, .until  September  1,  1901,  when  a  civil  governor  was 
appointed  with  William  H.  Taft  as  first  occupant  of  that 
post.  Meanwhile  various  administrative  departments  were 
organized  and  a  beginning  was  made  toward  the  recon- 
struction of  local  government. 

In  July,  1902,  came  the  next  step,  when  Congress  passed 
the  Philippine  Civil  Government  Act  which  still  remains  the 
basis  of  government  in  the  islands.2  The  chief  provisions  of 
this  law  are  as  follows :  The  executive  power  is  vested  in 
a  governor-general,  appointed  by  the  President  with  the 
consent  of  the  Senate,  and  in  the  heads  of  the  administrative 
departments,  who  are  similarly  appointed.3  These  adminis- 
trative officials  are  also  members  of  the  Philippine  Com- 
mission, which  includes  along  with  them  four  other  persons 
named  by  the  President.  This  commission  remained  the 
sole  legislative  body  of  the  islands  until  1907  ;  since  that  time 
it  has  served  as  the  upper  chamber  of  the  legislature. 

The  Act  of  1902  did  not  provide  for  the  immediate  es- 

1  This  act  was  popularly  known  as  the  Spooner  Amendment. 

2  57th  Congress,  1st  Session,  Chap.  1369 ;   32  Statutes  at  large,  Part 
I,  691. 

3  Five  departments  are  authorized  by  the  Act,  of  which  only  four  have 
as  yet  been  established,  namely  (1)  Interior,  (2)  Commerce  and  Police, 
(3)  Finance  and  Justice,  (4)  Public  Instruction.     Each  is  in  charge  of  a 
commissioner  with  several  bureaus  within  his  department. 


THE  GOVERNMENT  OF  TERRITORIES  381 

tablishment  of  an  elective  assembly  or  House  of  Represent- 
atives.  It  merely  stipulated  that  such  a  body  should  be 
called  within  a  certain  time  after  the  islands  had  been  pacified 
and  a  census  taken.  These  conditions  were  eventually  ful- 
filled, and  the  first  Philippine  Assembly  met  at  Manila  in 
the  autumn  of  1907.  This  Assembly  consists  of  not  fewer 
than  fifty  nor  more  than  one  hundred  assemblymen  chosen 
by  the  voters  of  the  islands  for  a  two-year  term.  The 
voters  include  all  male  citizens,  twenty-three  years  of  age 
or  over,  who  have  any  one  of  the  three  following  qualifica- 
tions, (1)  speak,  read,  and  write  either  English  or  Spanish,  or  The 
(2)  own  property  worth  500  pesos,  or  pay  not  less  than  30'  suffra«e- 
pesos  annual  taxes,  or  (3)  have  held  any  office  of  importance 
during  the  Spanish  regime.  The  right  to  vote  does  not 
extend  to  those  who  have  remained  subjects  of  Spain. 
The  proportion  of  registered  voters  to  population  is  less 
than  four  per  cent ;  in  the  United  States  under  manhood 
suffrage  it  runs  from  fifteen  to  twenty  per  cent. 

The  Philippine  legislature  is  now  made,  up^ of  two  chambers,  The  powers 
therefore,  the  Commission  and  the  Assembly.     Its  powers  °aft^  legia~ 
include  the  levy  of  taxes,  the  making  of  laws,  the  borrowing 
of  money,  and  the  voting  of  annual  appropriations.     There 
is  the  usual  provision  that  in  case  of  the  legislature's  failure 
to  make  appropriations,  the  sums  voted  for  the  preceding 
year  are  available  for  carrying  on  the  government.     The 
governor-general  has  no  veto  power  and  indeed  the  Act  of 
1902  made  no  provision  as  to  the  term,  responsibility,  or 
special   powers   of   this   official.     Such   matters   were   left 
and  still  remain  in  the  hands  of  the  President.     All  laws 
made  by  the  Philippine  legislature  must  be  transmitted  to 
Washington  where  Congress  may  declare  them  void,  but 
Congress  practically  never  takes  such  action.     Two  delegates  Delegates 
from,  the    Philippines,    chosen    every    two    years    by    the  mCon- 
Philippine  legislature,  are  entitled  to  sit  but  not  to  vote  in 
the  House  of  Representatives  at  Washington. 

The  judicial  organization  of  the  Philippines  is  much  like  Judicial 
that  of  Porto  Rico.     There  are  local  courts,  district  courts  °*ticm~ 
(or  courts  of  the  first  instance),  and  a  supreme  court  for  the 
islands.     Under  certain  conditions  appeals  may  be  taken 
from  the  decisions  of  this  last-named  court  to  the  Supreme 


382      THE  GOVERNMENT  OF  THE  UNITED  STATES 

Court  of  the  United  States.  Judges  of  the  subordinate 
courts  are  appointed  by  the  governor-general  with  the  con- 
sent of  the  Commission;  those  of  the  supreme  court  by 
the  President.  Congress  has  extended  to  the  Philippines 
all  the  constitutional  rights  which  belong  to  the  citizens 
of  the  United  States,  excepting  only  the  right  of  trial  by 
jury  and  the  right  to  keep  and  bear  arms.  The  old  legal 
system  of  the  Spanish  period  remains  substantially  un- 
changed ;  but  Spanish  judicial  procedure  in  both  civil  and 
criminal  trials  has  been  abolished.  Common-law  procedure, 
with  the  exception  of  the  jury  system,  has  supplanted  it. 
The  pro-  A  system  of  local  government  has  also  been  established 

govern-  ^n  ^ne  islands.  There  are  thirty-one  "regular"  provinces, 
ments.  each  with  a  provincial  governor  and  certain  administrative 
officials  assisting  him.  The  provincial  governor  is  elected 
every  two  years  by  a  convention  made  up  of  the  councillors 
of  the  municipalities  within  the  province;  the  adminis- 
trative officials  are  selected  under  civil  service  regulations 
and  appointed  by  the  governor-general.  There  is  no  elec- 
tive council  in  any  of  these  provinces.  The  functions  of 
the  provincial  governments  are  to  look  after  the  collection  of 
taxes,  to  care  for  main  roads,  and  to  supervise  the  work 
of  the  municipal  authorities.  The  taxes,  after  they  are 
collected,  go  in  part  to  the  island  treasury,  in  part  to  the 
municipalities,  and  in  part  to  the  province ;  but  the  province 
is  the  chief  unit  for  collecting  them.  Seven  other  non- 
Christian  provinces  are  entirely  under  the  control  of  the 
Philippine  Commission  and  have  no  local  government  of 
their  own. 

Munici-  Of  municipalities  there  are  several  hundreds,  large  and 

golem-        small.     Manila,  the  capital,  is  governed  by  a  board  of  six 
ment.  commissioners  of  whom  three  are  appointed  by  the  governor- 

Manila,  general  with  the  assent  of  the  Philippine  Commission,  one  is 
a  member  ex  officio  (the  city  engineer),  and  two  are  elected 
by  the  people  of  the  city.  In  the  event  of  a  deadlock  in  the 
board,  the  governor-general  is  empowered  to  appoint  a 
seventh  member.  This  board  has  the  usual  powers  of  an 
American  city  government.  It  appoints  the  city  officials, 
enacts  the  local  ordinances,  and  controls  the  various  adminis- 
trative departments  such  as  public  works,  police,  health, 


THE  GOVERNMENT  OF  TERRITORIES  383 

and  schools,  but  the  city's  budget  does  not  become  effective 
until  approved  by  the  Philippine  Commission. 

Apart    from  Manila  all   the  municipalities  are  grouped  The 
into  four  classes  according  to  their  size.     Each  has  an  elective 
municipal  government  which  includes  a  municipal  council  paiities. 
of  from  eight  to  eighteen  members.     These  local  govern- 
ments, however,  are  under  strict  provincial  control. 

The  fiscal  relations  between  the  United  States  and  the  Fiscal 
'Philippines  are  different  from  those  which  exist  between  relatlons- 
the    United    States  and  Porto  Rico.     Trade  between  the 
Philippines  and  the  United  States,  both  ways,  is  subject  to 
a  special  tariff.     There  is  also  a  great  variety  of  internal 
taxes.     Much  revenue  is  needed,  especially  to  cover  the  cost 
of   the   elaborate   public   school   system   which   has   been 
developed  under  American  rule.1 

In  Samoa  all  governmental  authority  is  vested  in  the  Samoa 
hands  of  a  commandant  designated  by  the  Secretary  of  the  and  Guam 
Navy.     The  commandant  appoints  a  governor  for  each  of 
the  three  districts  into  which  the  American  islands   are 
divided.     Local  government  is  left  to  the  natives.     The 
same  system  of  administration  by  naval  commandant  exists 
in  the  island  of  Guam.     In  the  case  of  the  Panama  Canal  The 
Zone,  that  strip  of  territory  across  the  isthmus  about  ten  ^^^ 
miles  in  width,   of  which  the  United  States  acquired  in  Zone. 
1904  from  the  Republic   of  Panama   "the  perpetual  use, 
occupation  and  control/'  the  administration  is  in  the  hands 
of  the  War  Department  and  is  exercised  through  a  governor 
appointed  by  it.     The  newly-acquired  Danish  West  Indies  The 
or  Virgin  Islands  are  for  the  time  being  in  charge  of  the 
Navy  Department.     Cuba  is  not  in  any  sense  a  possession 
of  the  United  States,  although  it  is  virtually  under  American r 
protection  in  international  affairs. 

Unlike  other  countries  which  possess  important  overseas 
dependencies,  the  United  States  maintains  no  Department 

1  For  further  information  concerning  the  government  of  the  Philip- 
pines, see  W.  F.  Willoughby,  Territories  and  Dependencies  of  the  United 
States  (N.  Y.,  1905) ;  F.  Chamberlm,  The  Philippine  Problem  (Boston, 
1913) ;  W.  H.  Taft,  Special  Report  to  the  President  on  the  Philippines 
(Washington,  1908) ;  J.  M.  Dickinson,  Special  Report  to  the  President  on 
the  Philippines  (Washington,  1910) ;  and  Dean  C.  Worcester,  The  Philip- 
pines, Past  and  Present  (2  vols.,  N.  Y.,  1914). 


384      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  decen- 
tralized 
super- 
vision of 
external 
possessions. 


The 
District 
of 
Columbia. 


Early  vicis- 
situdes 
of  the 
federal 
capital. 


What  the 
constitu- 
tion 
provides. 


of  Colonies.  The  general  supervision  of  the  affairs  of  Porto 
Rico;  the  Philippines,  and  the  Panama  Canal  Zone  is  in- 
trusted to  the  War  Department.  In  the  case  of  the  Philip- 
pines this  supervision  is  directly  exercised  by  the  Bureau  of 
Insular  Affairs,  one  of  the  War  Department's  bureaus.  The 
minor  island  dependencies,  as  has  been  said,  are  under  the 
jurisdiction  of  the  Navy  Department,  for  no  other  reason 
than  that  the  navy  took  over  possession  of  them  in  the  first 
instance  and  Congress  has  not  since  intervened.  Hawaii 
and  Alaska  are  to  some  extent  under  the  supervision  of  the 
Interior  Department. 

The  District  of  Columbia  occupies  a  somewhat  anomalous 
position  in  the  governmental  system  of  the  United  States.1 
It  is  neither  a  state  nor  a  territory  but  by  virtue  of  its  being 
the  national  capital  it  is  directly  under  the  control  of  the 
federal  government.  From  the  beginning  of  the  Revolution- 
ary War  to  the  formation  of  the  constitution,  Philadelphia 
served  as  the  continental  headquarters  save  for  a  short 
period  in  1783  when  the  Congress  of  the  Confederation  was 
driven  from  its  meeting  place  by  a  band  of  Revolutionary 
soldiers  clamoring  for  their  pay.  Sessions  for  a  few  weeks 
were  then  held  at  Princeton.  This  incident  carried  its 
lesson,  however,  to  the  members  of  the  constitutional  con- 
vention in  1787.  While  they  were  not  ready  to  designate 
any  city  as  the  permanent  seat  of  the  new  national  govern- 
ment, lest  by  so  doing  they  should  create  sectional  jealousy 
and  perhaps  lead  to  the  rejection  of  the  whole  constitution, 
they  did  make  provision  for  the  eventual  selection  of  a 
capital  which  would  be  exempt  from  the  jurisdiction  of  any 
state. 

At  Madison's  suggestion,  accordingly,  the  constitution 
was  worded  to  provide  that  Congress  should  have  power  "to 
exercise  exclusive  legislation  in  all  cases  whatsoever  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by 
cession  of  particular  states  and  the  acceptance  of  Congress, 
become  the  seat  of  government  of  the  United  States."  2  The 
selection  of  the  exact  place  was  left  for  the  future,  but  with 

1  The  best  full  account  of  its  government  is  that  given  in  W.  F.  Dodd, 
The  Government  of  the  District  of  Columbia  (Washington,  1909). 

2  Article  i,  Section  8. 


THE  GOVERNMENT  OF  TERRITORIES  385 

the  stipulation,  as  indicated  above,  that  the  territory 
acquired  for  the  new  capital  should  be  wholly  under  the 
control  of  Congress. 

When  the  first  Congress  of  the  United  States  met  in  choice 
1788-1789  after  the  adoption  of  the  constitution,  there  was  °f  the 
a  long  and  bitter  struggle  on  this  question,  particularly  location. 
between  representatives  of  the  northern  and  the  southern 
states.     Each  wanted  the  capital  located  in  its  own  region. 
In  the  end  it  was  agreed  to  accept  a  location  on  the  Potomac, 
which  was  in  reality  a  victory  for  the  South.1 

So  Maryland  and  Virginia  each  jointly  ceded  some  terri-  The  site 
tory  to  the  federal  government,  too  much  of  it  in  fact,  and  in  yh^i 
1846  Virginia  was  allowed  to  take  back  part  of  what  she  had  and  Mary- 
given,  so  that  the  area  of  the  district  is  now  sixty-nine  land> 
square    miles    instead    of    the    hundred    originally    ceded. 
During  the  course  of  the  years  1790-1791  legislation  was 
enacted  locating  the  new  federal  district,  and  accepting  the 
cession  of  territory  from  Maryland  and  Virginia.     Mean- 
while Congress  held  its  annual  sessions  in  New  York,  which 
served  as  the  capital  for  eleven  years  (1789-1800). 

The  statute  establishing  the  new  home  of  the  nation's  The 
government  on  the  Potomac  also  provided  for  the  establish-  ^at^illg 
ment  of  a  commission  to  lay  out  the  streets,  the  sites  for  district. 
public  buildings,  and  so  on.     The  commission  acted  wisely 
in  the  work,  for  at  Washington's  suggestion  it  brought  from 
France  Major  Pierre-Charles  L'Enfant,  an  engineer  who  had 
served  in  the  Revolutionary  War,  and  intrusted  the  city- 
planning  task  to  him.     L'Enfant  did  his  part  well,  although  Work  of 
he  planned  upon  a  rather  too  elaborate  scale.     It  is  due  L>Enfant- 
largely  to  his  skill  and  foresight  that  the  national  capital 
is  to-day  the  best-planned  large  urban  area  in  the  world. 
The   planning    and    construction    of   the   public   buildings 
took  nearly  ten  years,  and  it  was  not  till^lSOO  that   the 
President  and  Congress  moved  from  New"  York  to   their 
permanent  quarters. 

1  The  selection  was  the  result  of  a  deal  between  the  sectional  leaders 
by  which  southern  congressmen  supported  a  measure  for  the  assumption 
of  state  debts  by  the  national  government,  a  project  in  which  the  business 
interests  of  the  northern  states  were  much  interested.  For  the  whole 
story,  see  Gaillard  Hunt's  article  on  ''Locating  the  Capital"  in  the  Ameri- 
can Historical  Association's  Annual  Report  (1895),  pp.  287-295. 
2c 


386      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Early  gov- 
ernment of 
the  district. 


Present 
adminis- 
tration. 


The  com- 
missioners. 


Their 
powers. 


In  the  following  year  (1801)  an  act  was  passed  by  which 
Congress  assumed  complete  control  over  the  district  and 
divided  it  into  two  counties,  one  on  the  south  and  the  other 
on  the  north  shore  of  the  Potomac.  In  due  course  two 
cities  were  chartered  in  the  northern  area  under  the  names 
of  Washington  and  Georgetown,  each  with  its  own  local 
government,  and  in  this  shape  matters  drifted  along  until 
1871.  The  divided  municipal  authority  naturally  gave 
rise  to  friction  and  the  interests  of  the  national  government 
finally  impelled  Congress  to  consolidate  the  whole  area 
into  one  municipality,  known  as  the  District  of  Columbia. 
But  the  scheme  of  municipal  government  provided  for  the 
district  soon  proved  extravagant  and  unsatisfactory.  In 
1874,  accordingly,  Congress  again  intervened  by  putting 
all  the  affairs  of  the  district  in  the  hands  of  three  com- 
missioners appointed  by  the  President,  thus  abolishing  local 
self-government  altogether.  This  plan  was  made  permanent 
in  1878  and  with  minor  changes  it  remains. 

The  executive  administration  of  the  District  of  Columbia 
is  vested  in  an  appointive  commission  of  three.  Two  of 
these  commissioners  are  appointed  by  the  President,  with 
the  consent  of  the  Senate,  from  among  the  residents  of  the 
district.  They  hold  office  for  a  four-year  term  and  one 
must  be  chosen  from  each  of  the  two  leading  political  parties. 
The  third  commissioner  is  detailed  by  the  President  from 
the  engineer  corps  of  the  United  States  army.  He  must  be 
an  officer  with  the  rank  of  captain  or  higher  rank,  but  is  not 
detailed  for  any  definite  term.  Subordinate  officers  of  the 
engineer  corps  are  assigned  to  assist  him. 

These  three  commissioners  of  the  District  of  Columbia, 
as  a  body,  have  large  powers.  They  make  all  municipal 
appointments,  supervise  the  local  public  services  such  as 
streets,  water  supply,  policing,  fire  protection,  schools,  and 
charities ;  and  have  power  to  make  the  ordinances  or 
regulations  relating  to  the  protection  of  life,  health,  and 
property.  Each  member  of  the  commission  takes  immediate 
charge  of  certain  departments,  for  example,  the  engineer 
member  has  charge  of  streets,  water  supply,  sewerage, 
parks,  and  lighting.  In  a  word  they  exercise  the  functions 
which  in  many  cities  of  the  United  States  are  given  to  the 


THE  GOVERNMENT  OF  TERRITORIES  387 

mayor,  the  heads  of  municipal  departments,  and  the  city 
council. 

The  laws  applying  to  the  District  of  Columbia  are  practi-  The  laws 
cally  all  made  by  Congress,  although  usually  on  the  com-  appropria- 
mission's  recommendation.     So  also  are  the  appropriations  tions, 
for    carrying    on    the    government    of    the    district.     The  howmade- 
commissioners  each  year  make  their  estimate  of  what  is 
required  and  submit  it  to  a  congressional  committee.     After 
this  committee  has  considered  the  estimates,  and  changed 
them  as  it  sees  fit,  an  appropriation  act  embodying  them 
is  passed  by  Congress.     Half  the  annual  cost  of  governing 
the  district,  as  thus  appropriated,  is  paid  from  the  national 
treasury ;    the  other  half  is  levied  upon  the  district  by 
taxation.     A  very  great  amount  of  property  in  the  district 
belongs  to  the  national  government  and  is  exempt  from 
taxation.     That  is  why  the  national  treasury  bears  part 
of  the  cost. 

The  District  of  Columbia  has  its  own  system  of  courts,  The 
comprising  a  police  court,  a  court  of  appeals,  and  a  supreme  l°°^ia 
court.     All   the   judges    are    appointed   by   the   President. 
The  Supreme  Court  of  the  United  States  holds  its  sessions 
there  also ;    but  it  has  no  direct  concern  with  local  juris- 
diction. 

The  inhabitants  of  the  District  of  Columbia  are  entirely  Absence 
disfranchised.     They  have  no  vote  for  President,  since  the  of  local 

autonomy. 

district  is  not  entitled  to  any  presidential  electors.  They 
have  no  senators,  no  representatives  in  Congress,  no  mayor, 
aldermen,  or  councillors.  The  only  way  in  which  any  in- 
habitant of  the  District  of  Columbia  ever  manages  to  cast 
a  ballot  is  by  being  a  " legal  resident"  of  some  other  place. 
That  is  the  way  many  of  them  arrange  it.  When  men  are 
appointed  to  federal  positions  which  involve  their  living  in 
Washington  they  often  retain  their  legal  residences  in  the 
states  from  which  they  come,  and  go  back  to  these  states 
to  cast  their  votes  on  election  day.  But  there  are  many 
thousands  who  are  born  in  Washington  and  live  there  who 
have  no  such  opportunity.  They  pay  taxes  regularly  bui|  The 
they  have  no  representation  either  in  the  national  government  ^ 
or  in  the  management  of  their  own  local  affairs.  Th*  situation. 
government  of  the  District  of  Columbia  affords  the  most 


388      THE  GOVERNMENT  OF  THE  UNITED  STATES 

^glaring  example  of  taxation  without  representation  that 
I  exists  in  any  democracy.  No  sophistry  can  explain  that 
\|  simple  fact  away. 

Effi-  But  as  a  practical  matter  the  people  of   the   district 

ofthTk         are  ^ar  be^er  onC  "than  they  would  be  if  Congress  allowed 
district's       them  to  elect  all  their  local  officers  and  to  pay  all  their  own 
men™"         expenses.     The  District  of  Columbia  is  one  of  the  most 
efficiently  and    most    economically  governed   urban   areas 
in  the  world.     Its   administration  has  been  free  for  more 
than  forty  years  from  scandal  and  corruption.     Local  self- 
government  would  more  than  double  the  rate  of  taxation 
and  the  people  of  the  district  would  probably  get  less  for 
their  taxes  than  they  do  under  the  present  system. 
Washing-  The  selection  of  Washington  as  the  site  of  a  political 

capital*        metropolis  was  a  serious  mistake.     The  Potomac  location 
city.  has  no  marked  natural  advantages,  and  as  a  place  in  which 

thousands  of  public  officials  must  work  throughout  the 
summer  months  it  has  obvious  drawbacks.  The  difficulty 
of  defending  it  from  attack  was  amply  proved  during  the 
War  of  1812,  and  in  the  Civil  War  the  necessity  of  guarding 
the  capital  interfered  greatly  with  the  strategy  of  the  federal 
armies.  Nevertheless  it  has  become  one  of  the  world's 
best  cities. 


CHAPTER  XXVII 

THE   PLACE   OF  THE   STATES   IN  THE   NATION 

THERE  are  two  sorts  of  republics,  national  and  federal.  A  federal 
A  national  republic  is  one  in  which  the  smaller  communities 
are  merely  administrative  subdivisions  of  the  whole,  and 
possess  only  such  powers  as  are  delegated  to  them.  France, 
for  example,  is  a  national  republic.  A  federal  republic,  on 
the  other  hand,  is  an  aggregation  of  states,  commonwealths, 
or  other  divisions,  each  of  which  possesses  its  own  inherent 
powers.  The  United  States  is  a  republic  made  up  of  smaller 
republics,  a  federal  republic,  an  indissoluble  league  of  Place  of 
republican  states.  And  a  republic,  as  Madison  defined  it,  ^state 
"is  a  government  which  derives  all  its  powers  directly  or  federal 
indirectly  from  the  great  body  of  the  people."  The  states  rePublic- 
of  the  Union  are  not,  like  the  departments  of  the  French 
republic,  mere  administrative  divisions  created  for  the  more 
efficient  carrying  on  of  government.  The  American  state 
has  its  own  assured  powers;  within  its  own  sphere  it  is 
supreme;  and  within  broad  limits  it  determines  its  own 
frame  of  government.  Its  powers  are  inherent,  not  dele- 
gated. It  possesses  these  powers  ab  initio  and  does  not 
receive  them  by  grant  from  the  federal  constitution  or  from 
any  other  overhead  source.  There  were  states  before  there 
was  a  national  constitution  and  they  possessed  the  attributes 
of  sovereignty.  Despite  the  assertion  in  the  preamble  of 
the  federal  constitution  that  "  We,  the  people  of  the  United 
States"  ordained  and  established  that  document,  the  fact 
is  that  the  people  as  such  had  nothing  directly  to  do  either 
with  its  making  or  adoption.  The  states  through  their 
delegates  framed  the  constitution  and  through  their  con- 
ventions ratified  it.1 

1  See  footnote  on  next  page. 
389 


390      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Nature 
of  the 
Union : 
federal  in 
form; 
national 
in  powers. 


Madison's 
explana- 
tion. 


What  the 
states 

surrendered 
and  why. 


But  although  the  government  of  the  United  States  is 
federal  in  form,  it  is  national  as  respects  the  mode  in  which 
it  exercises  its  powers.  The  national  government  in  the 
United  States  acts  directly  upon  the  individual  citizen. 
The  cooperation  of  the  state  governments  is  not  absolutely 
needed  for  the  operation  of  federal  powers  to  the  extent 
that  it  was  before  1787.  The  nation  claims  its  own  citizens, 
and  over  them  it  exercises  direct  authority  in  its  own  right. 
This  dual  nature  of  the  American  republic  has  been  the 
mainspring  of  much  diacritical  controversy,  but  the  framers 
of  the  constitution  knew  exactly  what  they  were  doing 
when  they  established  it  and  explained  it  fully  at  the  time. 
Madison,  in  The  Federalist,  gave  it  a  lucid  exposition  and 
one  that  for  conciseness  has  not  since  been  excelled.  "The 
proposed  constitution,"  he  wrote,  "is  in  strictness  neither 
a  national  nor  a  federal  constitution,  but  a  composition  of 
both.  In  its  foundation  it  is  federal,  not  national ;  in  the 
operation  of  its  powers  it  is  national,  not  federal;  in  the 
extent  of  them,  again,  it  is  federal,  not  national;  and 
finally,  in  the  authoritative  mode  of  introducing  amend- 
ments it  is  neither  wholly  federal  nor  wholly  national." 

In  the  American  scheme  of  government  the  states  are 
the  original  source  of  governmental  powers.  All  powers  now 
possessed  by  the  national  government  have  been  delegated 
by  the  states  at  some  time  or  other.2  By  their  adoption 
of  the  national  constitution,  the  states  parted  with  certain 
great  powers,  delegating  them  to  a  new  national  government 

1  The  Federalist,  No.  39. 

2  This  doctrine  of  original  state  sovereignty  and  of  state-delegated  fed- 
eral powers  was  not  in  favor  among  Northern  constitutional  jurists  before 
the  Civil  War.     Daniel  Webster,  for  example,  was  at  great  pains  to  explain 
that  although  the  constitution  had  been  ratified  state  by  state,  yet  the 
process  of  adopting  it  was,  after  all,  not  the  act  of  each  state  individually 
"but  of  the  whole  people  united  into  a  political  unity  by  that  subjective 
feeling  of  nationality  which  is  the  ultimate  foundation  of  every  sovereign 
state,"  or  in  other  words,  that  the  whole  people  merely  used  their  existing 
state  machinery  to  act  en  masse.     This  sounds  a  good  deal  like  juridical 
sophistry ;  and  indeed  it  sets  forth  a  proposition  which  no  mortal  man  can 
either  prove  or  disprove.     What  the  "subjective"  attitude  of  the  whole 
people  really  was  in  1787-1788  no  one  can  say.     So  far  as  the  written 
records  of  the  time  can  be  appealed  to,  they  show  a  variety  of  attitudes 
both  as  to  what  sort  of  action  the  constitution  contemplated  and  as  to 
whether  that  action  ought  to  be  taken  at  all.     See  W.  W.  Willoughby,  The 
American  Constitutional  System  (N.  Y.,  1904),  pp.  18-19. 


THE  PLACE  OF  THE  STATES  IN  THE  NATION     391 

in  order  "to  form  a  more  perfect  union,  to  establish  justice, 
insure  domestic  tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare  and  secure   the  blessings   of 
liberty."     The  states  on  establishing  the  national  govern- 
ment parted  with  various  powers  forever,  for  example,  the 
power  to  make  treaties,  to  wage  war,  or  to  coin  money.     They 
parted   forever  with   all   the   exclusive  powers  which   the 
constitution  gives  to  Congress  and  became  forever  subject  The  dele- 
to  the  limitations  which  the  constitution  places  upon  them-  p^ers°to 
selves,  subject  of  course  to  the  right  of  amendment  which  the  nation 
the  constitution  itself  provides  may  be  exercised  in  ways 
prescribed. 

The  states  have  also  delegated  certain  powers  downward,  The  dele- 
that   is  to   counties,  cities,   towns,  and  other  subordinate  go^s°to 
corporations.     But  here  there  is  a  great  difference.     What  subordi- 
the  states  have  given  to  these   communities  may  at  any 
moment  be  taken  back  again.     The  grant  of  power  upwards 
is  an  irrevocable  grant ;   the  grant  of  power  downwards  can 
be  revoked.     There  is  a  fundamental  difference,  accordingly,  Difference 
between  the  federal  constitution  and  a  city  charter  although 
both  are  examples  of  a  delegation  of  power.     The  city,  the 
county,  and  the  town  are  the  mere  creatures  of  the  state, 
established  by  it  as  a  matter  of  administrative  convenience. 
They  may  be  divided,  amalgamated,  or  even  extinguished  at 
any  time.     They  have  no  vested  authority.     The  nation, 
although    it  was    at  its  formation  the  handiwork  of  the 
states,  was  endowed  with  attributes  of  sovereignty  which 
have  proved  sufficient  to  guarantee  its  indissolubility. 

Statfi^Q^ffii^mi^ntJn  the  United  States  accordingly  rep-  The 
resents  the  exercise  of  powers  which  have  not  been  irrevocably 
delegated.  It  covers  a  field  originally  unlimited  but  now  con- 
fined within  strict  bounds  by  the  supreme  law  of  the  land.  It 
was  assumed  that  the  policy  of  assuring  to  the  states  the  "re- 
siduum" of  governmental  powers  would  eventually  make  the 
authority  of  the  states  outweigh  that  of  the  national  govern- 
ment, but  in  the  course  of  events  such  has  not  proved  to  be 
the  case.  The  elasticity  of  federal  powers,  as  interpreted  by 
the  Supreme  Court,  has  enabled  the  national  government  to 
assume  functions  which  would  have  fallen  within  the  residual 
field  if  a  policy  of  strict  construction  had  been  consistently 


392      THE  GOVERNMENT  OF  THE  UNITED  STATES 

Failure  followed.  Nevertheless  the  state  is  still  the  pivot  around 
residual  which  the  whole  American  political  system  revolves.  Were 
idea.  it  not  for  the  states  and  their  reserved  powers  the  American 

scheme  of  government  could  not  well  continue ;  were  it 
not  for  the  work  of  the  state  governments  a  President  could 
not  be  elected,  nor  could  congressmen  be  chosen,  for  the 
states  determine  the  voting  qualifications,  the  states  mark 
out  the  congressional  districts,  and  the  states  provide  all 
the  machinery  of  elections.  Neither  would  there  be  any 
county  or  city  or  town  governments,  for  all  of  these  derive 
their  "existence  and  their  authority  from  state  constitutions 
and  state  laws. 

Are  the  Much  ink  and  paper  have  been  wasted  in  discussing  whether 

"*^!  the  several  states  of  the  Union  are  now  "sovereign."     Here, 

ereign"?       as  in  so  many  other  political  disputations,   a  great  deal 
jdepends    upon    definitions.     If    by    sovereign    one    means 
JT possessed  of  absolutely  unlimited  political  power"  then  no 
(ftate  of  the  Union  is  sovereign.     None  of  them  is  without 
constitutional  shackles ;  all  are  restricted  in  what  they  may 
do.     The  true   situation  was   tersely   set   forth   by   Chief 
Justice  Marshall  a  hundred  years  ago  and  it  has  not  since 
been    materially    changed.     "In    America    the    powers    of 
:  sovereignty  are  divided  between  the  government  of  the 
|  Union  and  those  of  the  states.     They  are  each  sovereign 
with  respect  to  the  rights  committed  to  it,  and  neither  is 
sovereign   with   respect   to   the    rights   committed   to   the 
other."       This  doctrine,  however,  did  not  find  unanimous 
concurrence    throughout    the    country    during    the    period 
preceding  the  Civil  War.     "Sovereignty,"   declared  John 
C.  Calhoun,  "is  an  entire  thing;   to  divide  it  is  to  destroy 
it.  ...     We  might  just  as  well  speak  of  half  a  square  or 
of  half  a  triangle  as  of  half  a  sovereignty."  2     To-day,  how- 
ever,   Marshall's   doctrine   is   accepted   by   the   weight   of 
authority. 

Much  of  the  confusion  has  resulted  from  a  failure  to 

1  McCulloch   vs.    Maryland,    4   Wheaton,  316.     Alexander  Hamilton, 
in  1788,  had  expressed  the  same  doctrine  in  somewhat  different  words. 
"The  laws  of  the  United  States,"  he  declared,  "are  supreme  as  to  all  their 
constitutional  objects ;  the  laws  of  the  states  are  supreme  in  the  same  way. 
These  supreme  laws  may  act  on  different  objects  without  clashing." 

2  Disquisition  on  Government  (1851). 


THE  PLACE  OF  THE  STATES  IN  THE  NATION     393 

distinguish  sovereignty,  as  such,  from  the  exercise  of  those  Reason  for 
governmental  powers  which  one  commonly  associates  with  ^n^inT 
sovereignty.     Sovereignty    is    by    nature    indivisible;     for  onthia 
there  obviously  cannot  be  two  wills,  each  supreme,  in  the  question- 
same  body  politic.     On  the  other  hand  the  sovereign  will 
may  find  expression  through  various  channels,  legislative 
and  executive,  and  in  federal  states  it  may  find  expression 
through  both  central  and  local  authorities.     In  the  United 
States  this  is  the  case.     There  is  a  division  of  governmental 
powers  between  the  nation  and  the  several  states,  but  no 
partition  of  sovereignty,  no  division  of  the  supreme  will. 
The  authority  which  gave  these  powers  and  which  can  take 
them  away  is  the  ultimate  sovereign  in  the  United  States 
and  it  remains,  in  fact,  undivided.  That  ultimate  sovereignty 
is  the  authority  which  can  make  or  unmake  the   federal 
constitution. 

Where  does  it  rest?  To  say  that  ultimate  sovereignty  The  real 
rests  with  "the  people'7  is  not  to  express  it  correctly.  A 
majority  of  the  people  of  the  United  States  cannot  by  direct 
action  change  the  federal  constitution ;  a  minority  might  in 
some  circumstances  accomplish  it.  Action  by  a  two-thirds 
vote  on  the  part  of  Congress,  ratified  by  the  legislatures  of 
three-fourths  of  the  states  in  ways  prescribed,  or  action  by 
a  convention  called  together  at  the  request  of  two-thirds 
of  the  state  legislatures  with  subsequent  ratification  by 
three-fourths  of  them  —  that  is  the  manner  in  which 
ultimate  sovereignty  can  be  exercised.  Upon  such  action 
as  may  be  taken  in  such  ways  are  no  limitations  what- 
soever, and  of  no  other  governmental  action  taken  in  the 
United  States  can  the  same  be  said.  The  constitution- 
making  authority  has  the  last  word  in  all  things.1  But 
this  sovereign  in  the  United  States,  as  Lord  Bryce  puts  it, 

1  "The  task  of  running  the  sovereign  to  cover,  especially  in  the  com- 
posite states  of  to-day,  is  not  always  easy,  and  when  discovered  it  is  not 
always  recognized.  It  is  extremely  difficult  to  place  one's  finger  on  the 
exact  spot  where  it  reposes.  The  constitutional  lawyer  and  the  layman 
do  not  always  travel  the  same  path  in  the  search  for  it,  and  they  do  not 
always  find  it  in  the  same  place.  But  it  is  always  present  somewhere  in 
the  state;  and  if  in  the  search  we  push  our  inquiry  until  we  find  that 
authority  which  has  the  power  to  say  the  last  word  in  all  matters  of  author- 
ity, we  shall  find  ourselves  in  the  presence  of  the  sovereign."  J.  W.  Gar- 
ner, Introduction  to  Political  Science  (N.  Y.,  1910),  p.  263. 


394      THE  GOVERNMENT  OF  THE  UNITED  STATES 

is  "a  sovereign  who  sleeps/'  a  sovereign  who  is  only  at 
intervals  roused  forth  to  action,  and  whose  supreme  authority 
has  been  exerted  only  twice  during  the  last  half  century. 
The    *  It  is  a  principle  of  the  American  constitutional  system 

states  that  all  the  states  are  equal.     No  one  of  them  possesses 

equal.  any  governmental  powers  not  enjoyed  by  all  the  rest.     Con- 

gress may  exact,  however,  and  sometimes  has  exacted, 
certain  conditions  as  the  price  of  a  new  state's  admission 
to  the  Union.  It  can  do  this  because  full  discretion  as  to 
whether  a  state  shall  be  admitted  or  not  rests  in  its  own 
hands.  In  1894,  for  example,  Utah  was  required  as  a 
condition  of  its  admission  to  abolish  plural  or  polygamous 
marriages  forever.  But  once  a  state  is  actually  admitted 
I  to  the  Union  there  is  no  longer  any  legally  binding  force 
iin  these  promises  or  conditions.  Upon  being  granted  by 
Congress  the  privileges  of  statehood,  a  state  "becomes 
entitled  to  and  possesses  all  the  rights  of  dominion  and 
sovereignty  which  belong  to  the  original  states"  and  stands 
upon  an  equal  footing  with  them  in  all  respects  whatsoever.1 
No  continuing  limitations  other  than  those  provided  for 
all  the  states  by  the  terms  of  the  federal  constitution  can 
be  imposed. 

Creation  The  constitution  places  no  restrictions  upon  the  creation 

°^  new  spates  except  that  "no  state  shall  be  formed  or 
erected  within  the  jurisdiction  of  any  other  state,  nor  any 
state  be  formed  by  the  junction  of  two  or  more  states,  or 
parts  of  states,  without  the  consent  of  the  legislatures  of  the 
states  concerned."  2  The  process  of  admission  to  statehood 
is  relatively  simple,  the  usual  first  step  being  the  presentation 
of  a  petition  to  Congress  from  the  people  of  a  territory  asking 
that  they  be  organized  as  a  state  of  the  Union.  If  Congress 
regards  this  petition  favorably  it  passes  an  Enabling  Act, 
authorizing  the  people  to  draw  up  a  state  constitution  and 
prescribing  the  way  in  which  they  shall  proceed  to  do  this. 
/.  The  constitution  having  been  framed  and  accepted  by  the 
people  it  is  submitted  to  Congress  and  then,  by  a  resolution 
of  that  body,  the  territory  is  declared  to  be  a  state. 

All  the  states,  old  or  new,  are  entitled  to  certain  guarantees 
at  the  hands  of  the  national  government.     The  first  of 
1  Boln  vs.  Nebraska,  176  U.  S.  23.  2  Article  iv,  Section  3. 


THE  PLACE  OF  THE  STATES  IN  THE  NATION     395 

these,  as  set  forth  in  the  constitution  of  the  United  St at es^ Federal 
is  the  guarantee  of  "a  republican  form  of  government/'1  f^^~ 
Just  what  is  meant  by  that  phrase  the  constitution  does  not  the 
explain  ;  but  it  is  reasonable  to  assume  that  what  its  makers  state£ 
had  in  mind  was  the  general  type  of  government  existing  publican 
in  the  original  states  at  the  time  the  national  constitution  form  of 
was    adopted.     "No    particular    form    of    government/'   Sen™" 
declared  the  Supreme  Court  on  one  occasion,  "is  designated 
as  republican.  .  .  .     All  the  states  had  governments  when 
the    constitution   was    adopted.  .  .  .     These   governments 
the    constitution    did    not    change.  .  .  .     Thus    we    have 
unmistakable  evidence  of  what   was   republican    in    form, 
within  the  meaning  of  the  term  as  employed  by  the  con- 
stitution." 2     So  long,  therefore,  as  a  state  continues    tcy 
maintain  any  reasonable  approximation  to  "a  government 
which  derives  all  its  powers,  directly  or  indirectly,  from  the  S ) 
great  body  of  the  people, "  it  is  deemed  to  have  a  government  ) 
republican  in  form.  The  denial  of  suffrage  to  women  does  not, 
accordingly,  make  a  government  unrepublican.    Neither  does 
the  partial  substitution  of  direct  for  representative  methods 
of  legislation  by  means  of  the  initiative  and  referendum. 
The  Supreme  Court  has  wisely  refrained  from  any  attempt 
to  restrain  the  development  of  state  government  within 
rigid   bounds   by   construing   the   term   "republican"   too 
narrowly. 

The  constitution  also  guarantees  to  the  states  that  the^r^pro- 
whole  nation  shall  "protect  each  of  them  against  invasion;  tec(jlon 
and  on  the  application  of  the  legislature,  or  of  the  executive  invasion 
(when  the  legislature  cannot  be  convened),  against  domestic  and  aid 
violence."  3     This  guarantee  is  couched  in  terms  sufficiently  internal 
definite  to  prevent  any  serious  misconception  of  its  scope.  disorder- 
In  case  of  invasion  the  federal  government's  intervention 
does  not  have  to  be  invited  ;  but  in  the  event  of  riots  or  other 
internal  disorder  an  express  request  must  be  made  by  the 
state  authorities  in  the  manner  prescribed.     The  national 

1  Article  iv,  Section  4.     Some  thought  the  insertion  of  this  guarantee 
to  be  a  needless  precaution.     "But  who  can  say,"  wrote  Madison,  "what 
experiments  may  be  produced  by  the  caprice  of  various  states,  by  the  ambi- 
tion of  enterprising  leaders  or  by  the  intrigues  and  influence  of  foreign 
powers?" 

2  Minor  vs.  Happersett,  21  Wallace,  162,  3  Article  iv,  Section  4. 


396      THE  GOVERNMENT  OF  THE  UNITED   STATES 

government  may,  however,  intervene  to  quell  disorder, 
even  without  a  state's  invitation  or  consent,  if  local  violence 
is  impeding  the  proper  exercise  of  any  federal  function  such 
as  the  transmission  of  the  mails  or  the  collection  of  the 
national  revenues.1 

The  powers       The  powers  of  the  several  states  are  of  course  not  enu- 
states  are      nierated  in  the  federal  constitution.     To  look  for  them  there 
notenumer-  would  be  to  misconceive  the  fundamental  nature  of  that 
a^ed  mn        document.     When  one  man  gives  to  another  a  deed  of  cer- 
tution.         tain  lands  he  does  not  include  a  list  of  all  the  property  he 
still  has  left.     Neither  did  the  states,  in  surrendering  certain 
.  powers,  make  any  catalogue  of  those  retained.     All  unmen- 
'.tioned  governmental  powers  remain  where  they  were  origi- 
\  nally — with  the  states.     This  point  will  bear  repetition,  for 
despite  its  simplicity  and  importance,  there  is  no  feature 
of  the  American  constitutional  system  so  persistently  mis- 
understood by  the  average  citizen. 

The  federal  constitution  curtailed  the  governmental  au- 
thority of  the  states  in  three  ways,  by  transferring  certain 
powers  to  the  national  government^-  by  prohibiting  the 
states  from  doing  various  things,  and  fey  placing  some  inter- 
state obligations  upon  them.  The  powers  transferred  to 
the  nation  have  already  been  discussed.  The  prohibitions 
laid  upon  the  states  are  to  some  extent  similar  to  those  placed 
upon  Congress ;  but  with  some  important  additions.  The 
obligations  have  to  do,  as  will  be  seen  presently,  with 
matters  of  interstate  comity. 

Prohibi-  The  prohibitions  laid  upon  the  nation  and  the  states  alike 

tions  are  those  relating  to  bills  of  attainder,  ex  post  facto  laws,  and 

si»tes:  e       titles  of  nobility,  all  of  which  are  forbidden.     In  addition 

i.  in  the  constitution  forbids  the  states  to  enter  into  any  treaty 

general.         or  alliance,  to  coin  money  or  to  issue  paper  money,  to  make 

anything  but  gold  and  silver  a  legal  tender  in  payment  of 

debts,  to  lay  any  duty  on  imports  or  exports,  to  keep  troops 

or  ships  of  war  in  time  of  peace,  or  to  engage  in  war  unless 

in  imminent  danger  of  invasion.     These  various  restrictions 

were  placed  upon  the  states  in  order  that  various  powers 

of  the  national  government  (such  as  the  conduct  of  foreign 

affairs  and  the  control  of  commerce)  might  not  be  interfered 

1  See  above,  p.  122. 


THE  PLACE  OF  THE  STATES  IN    THE  NATION     397 

with.     They  are  intended  to  render  certain  federal  powers 
exclusive  in  their  nature. 

A  restriction  upon  the  states  which  has  given  rise  to  some  2.  the 
famous  controversies  is  that  which  forbids  the  passage  of  any  ™ 
"law  impairing  the  obligations  of  contract."     One  of  the  contract 
earliest,  and  certainly  the  most  notable,  of  these  was  the 
Dartmouth  College  Case  which  came  before  the  Supreme 
Court  in  1819. 1     The  point  at  issue  was  as  to  whether  the 
charter  of  Dartmouth  College  was  a  " contract7'  and  hence   The 
protected  against  any  hostile  interference  on  the  part  of  a  Co5 
state  legislature.     The  Supreme  Court  held  that  it  was  a  Case 
contract  and  that  the  state  legislature  had  no  power  either 
to  revoke  it  or  to  impair  its  value.     This  does  not  imply,  how- 
ever, that  when  a  private  corporation  is  given  a  charter  it 
can  never  be  taken  away  or  changed.     The  state  legislatures, 
in  granting  charters,  can  make  them  revocable  at  will  and 
many  of  them  now  do  this.     But  even  when  such  reservation 
is  not  made,  a  charter  is  no  more  sacred  than  any  other  form 
of  property  and  it  can  be  taken  away  whenever  the  public 
interest  so  requires,  provided  just  compensation  be  given. 
Not  only  that,  but  if  the  impairment  of  a  corporate  charter 
be  demanded  by  the  interest  of  public  safety,  health,  or 
morals,  the  police  power  of  the  state  is  a  sufficient  warrant 
for  abrogating  or  changing  it  without  any  compensation. 

The  rule  in  the  Dartmouth  College  Case  applies  to  the 
charters    of   private    corporations    only.     The    charters    of 
public  corporations,  such  as  cities,  counties,  or  boroughs,  Charters 
are  not  contracts  and  are  in  no   case  protected  by  this  po 
constitutional  provision   against   revocation   or   change   at  turns, 
will.     The  municipality  is  merely  the  agent  of  the  state 
established  for  the  more  convenient  administration  of  its 
local  functions  and  so  far  as  the  federal   constitution  is 
concerned  the  legislature  has  unlimited  power  to  repeal  or 
amend  its  charter.     But  in  many  of  the  state  constitutions, 
as  will  be  seen  later  on,  a  certain  degree  of  protection  or 
"home  rule"  is  guaranteed  to  cities  and  various  limitations 
are  placed  upon  the  legislature's  authority  with  reference 
to  them. 

A  contract  is  an  agreement  enforceable  at  law.     When  the 
1  Dartmouth  College  vs.  Woodward,  4  Wheaton,  518. 


398      THE  GOVERNMENT  OF  THE  UNITED   STATES 


3.    limita- 
tions of 
the  Four- 
teenth 
Amend- 
ment. 


Purpose 
of  this 
provision. 


Its 

scope 
widened. 


parties  to  a  contract  acquire  rights  of  property  therein,  the 
state  is  not  permitted,  by  the  passage  of  any  adverse  law, 
to  impair  such  rights  without  compensation  unless  the 
interests  of  the  public  safety,  health,  or  morals  so  require.1 
In  determining  what  relations  come  within  the  category  of 
contracts  and  are  hence  entitled  to  this  protection,  the 
courts,  however,  have  held  to  rules  of  strict  construction. 
A  license  to  carry  on  any  given  form  of  business,  for  example, 
is  not  a  contract  within  the  meaning  of  the  impairment 
prohibition.  It  does  not  give  its  holder  a  vested  right. 

The  Fourteenth  Amendment,  in  addition  to  imposing 
upon  the  states  the  same  limitation  which  applies  to  Congress 
with  reference  to  the  deprivation  of  property  without  due 
process  of  law,  adds  the  provision  that  no  state  shall  make 
or  enforce  any  law  abridging  the  privileges  and  immunities 
of  citizens  of  the  United  States,  "nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws." 

This  broad  limitation  upon  the  states  has  had,  during  the 
half  century  which  has  elapsed  since  its  insertion  in  the 
constitution,  an  interesting  history.  Its  general  intent  was 
simple  and  plain  enough.  The  negro  had  been  set  free  during 
the  Civil  War  and  the  main  purpose  of  the  Fourteenth 
Amendment  was  to  provide  him  with  an  effective  guarantee 
against  hostile  discrimination  in  the  future  laws  of  the 
southern  states.  So  clearly  was  this  purpose  apparent 
that  not  long  after  the  adoption  of  the  amendment  the 
Supreme  Court  expressed  its  doubt  "whether  any  action 
by  the  state  not  directed  by  way  of  discrimination  against 
the  negroes  as  a  class  or  on  account  of  their  race"  would 
ever  be  held  to  be  an  infringement  of  its  provisions.3 

Yet,  strangely  enough,  the  negro  has  managed  to  obtain 
during  the  past  forty  years  scarcely  a  whiff  of  this  solicitude. 
The  Supreme  Court  presently  resolved  its  own  doubts  by 
ruling  that  "every  one  everywhere/'  including  corporations, 
was  included  among  those  entitled  to  the  equal  protection 

1  There  is  no  provision  in  the  federal  constitution  prohibiting  Congress 
from  passing  any  law  which  impairs  the  obligation  of  a  contract.     The 
prohibition  applies  only  to  the  states. 

2  H.  E.  Flack,  The  Adoption  of  the  Fourteenth  Amendment  (Baltimore, 
1908). 

3  Slaughter  House  Cases,  16  Wallace,  36. 


THE  PLACE  OF  THE  STATES  IN  THE   NATION     399 

r  -• 

of  the  laws.1     And  at  once  the  court's  docket  began  to  fill  The  flood 
up  with  the  appeals  of  corporations  against  alleged  dis-  ^If-^' 
criminations  on  the  part  of  various  states,  while  the  negro,  conse- 
for  whose  particular  benefit  the  amendment  was  provided,  quence- 
soon  dropped  out  of  the  reckonings  altogether.     The  liti- 
gation based  upon  this  interpretation  of  the  Fourteenth 
Amendment   has  been   inordinately   large.     The  Supreme 
Court,  during  the  forty-four  years  from  1868  to  1912,  ren- 
dered more  than  six  hundred  decisions  in  elucidation  of  its 
provisions.     Less  than  a  score  of  them  had  to  do  with  al- 
leged discrimination  against  negroes.2    More  than  half  the  six 
hundred  were  controversies  in  which  corporations  invoked 
the  provisions  of  the  amendment  against  the   exercise    of 
state  authority. 

As  the  Fourteenth  Amendment  parallels  to  a  certain  "The equal 
extent  the  wording  of  the  Fifth,  its  guarantees  against  of°theCtK 
deprivations  without  due  process  of  law  and  in  relation  to  laws." 
the  taking  of  private  property  for  public  use  have  already 
been  discussed.3  But  the  requirement  as  to  "the  equal 
protection  of  the  laws"  is  an  additional  one  and  demands 
a  word  of  explanation.4  The  words  do  not  require  that 
all  individuals  and  corporations  shall  be  treated  absolutely 
alike  by  the  laws  of  a  state.  They  merely  insist  that  where 
any  distinction  is  made  by  law  between  different  classes  of 
individuals  and  corporations  it  shall  be  based  upon  some 
reasonable  ground  and  shall  not  be  of  the  nature  of  an 
unfair  discrimination.  It  is  proper,  for  example,  to  restrict 
certain  professions  to  residents  of  the  state  as  against 
non-residents,  or  to  persons  of  the  male  sex.  It  is  allow- 
able to  make  rules  relating  to  one  class  of  industries  but 
not  to  others,  provided  the  classification  is  a  reasonable 
one.  Such  distinctions  are  not  regarded  as  denying  the 
equal  protection  of  the  laws.  But  where  the  laws  of  a 
state  are  clearly  intended  to  impose  a  disability  upon 

1  Santa  Clara  Co.  vs.  Southern  Pacific  Co.,  118  U.  S.  394. 

2  C.  W.  Collins,   The  Fourteenth  Amendment  and  the  States   (Boston, 
1912). 

8  Above,  pp.  293-295. 

4  See  also  Henry  Brannan,  A  Treatise  on  ...  the  Fourteenth  Amendment 
(Cincinnati,  1901),  and  F.  J.  Swayze,  "The  Judicial  Construction  of  the 
Fourteenth  Amendment,"  in  26  Harvard  Law  Review,  No.  1  (1912). 


400      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Constitu- 
tional 
obliga- 
tions on 
the  states: 


1.  "Full 
faith  and 
credit." 


What 
interstate 
comity 
requires. 


certain  persons  or  corporations  while  giving  immunity 
therefrom  to  others  whose  .position  is  substantially  similar, 
then  the  protection  of  the  Fourteenth  Amendment  may  be 
invoked.  Even  " though  a  law  be  fair  on  its  face  and  im- 
partial in  appearance,  yet,  if  it  is  applied  and  administered 
by  public  authority  with  an  evil  eye  and  unequal  hand  so 
as  practically  to  make  unjust  and  illegal  discriminations 
between  persons  in  similar  circumstances,  material  to  their 
rights,  the  denial  of  equal  justice  is  still  within  the  prohibition 
of  the  constitution."  l 

The  obligations  placed  upon  the  states  by  the  federal 
constitution  relate  to  interstate  comity  and  to  extradition. 
In  general  the  several  states  are  independent  of  one  another. 
Each  has  its  own  laws,  courts,  and  officials  whose  authority 
does  not  extend  beyond  the  state  limits.  Yet  matters  often 
arise  which  involve  a  reference  to  the  laws  or  judicial 
decisions  of  another  state  and  the  constitution  lays  down  the 
principle  of  interstate  comity  which  shall  apply  in  such 
cases.  "Full  faith  and  credit,"  it  stipulates,  " shall  be 
given  in  each  state  to  the  public  acts,  records,  and  judicial 
proceedings  of  every  other  state." 2  When,  therefore,  a 
civil  issue  has  been  tried  by  the  courts  of  one  state  the 
judgment  will  be  recognized  and  if  necessary  enforced  by  the 
courts  of  every  other  state  without  a  retrial  of  the  issue. 
The  provision  does  not  apply  to  criminal  judgments ;  no 
state  may  be  required  to  enforce  the  criminal  laws  of  any 
other  state. 

The  obligation  of  interstate  comity  requires  that  when 
any  legal  proceeding  is  carried  out  within  the  jurisdiction 
of  one  state  in  proper  accord  with  the  laws  and  usages  of 
that  state,  it  will  be  recognized  as  a  valid  act  by  all  the  other 
states.  A  marriage,  if  legally  contracted  in  one  state,  is 
held  to  be  valid  in  all  the  others,  however  different  their 
rules  may  happen  to  be.  So  with  deeds,  wills,  or  contracts. 
The  laws  of  Massachusetts  require  that  a  valid  will  shall 

1  Yick  Wo  vs.  Hopkins,  118  U.  S.  356.     The  law  in  question  was  one 
which  required  that  all  persons  desiring  to  establish  laundries  in  frame 
buildings  in  San  Francisco  should  first  obtain  licenses  from  city  officials. 
It  was  evidently  designed  to  provide  the  local  politicians  with  a  new  source 
of  revenue. 

2  Article  iv,  Section  1. 


THE  PLACE  OF  THE  STATES  IN  THE  NATION     401 

have  three  witnesses,  each  of  whom  shall  sign  in  the  presence 
of  the  testator  and  in  the  presence  of  each  other.  Yet  if 
some  other  state  requires  only  two  witnesses,  a  will  so 
witnessed  in  such  jurisdiction  is  held  valid  in  Massachusetts 
as  affecting  property  there.  So  in  the  matter  of  contracts. 
The  lex  loci  contractus  or  law  of  the  state  in  which  the  con- 
tract is  made  governs  the  making  of  it.  If  valid  there 
the  courts  of  any  other  state  will  lend  their  aid  toward 
having  it  carried  out. 

In  the  matter  of  divorces  the  "full  faith  and  credit"  Therec- 
clause  has  had  the  greatest  strain  put  upon  it.  Divorces  °f^orc 
are  granted  in  different  states  under  widely  varying  condi-  decrees, 
tions.  One  state  (South  Carolina)  allows  no  decree  of 
divorce  to  be  given  by  any  of  its  courts  for  any  reason 
whatsoever ;  a  few  others  maintain  rules  so  strict  that 
divorce  decrees  are  infrequent ;  others,  again,  let  people 
obtain  them  more  easily,  while  one  or  two  states,  finally, 
have  divorce  regulations  of  the  most  lenient  sort  both  as  to 
the  grounds  necessary  to  be  alleged  and  as  to  the  evidence 
required  to  secure  a  decree.  Yet  despite  this  diversity  of 
practice  throughout  the  country  a  decree  of  divorce,  if 
granted  by  any  court  having  rightful  jurisdiction  in  one 
state,  is  valid  in  eveiy  other  state.  The  Supreme  Court 
has  laid  down  some  rules  as  to  the  essentials  of  rightful 
jurisdiction,  however.  It  has  ruled,  for  example,  that  no 
court  in  any  state  may  render  a  decree  of  divorce  which 
will  be  binding  in  other  states  unless  the  plaintiff  in  the  case 
is  a  bona  fide  resident  of  that  state.  Certain  formalities 
in  the  way  of  notice  to  the  defendant  must  also  be  complied 
with.  Nevertheless  the  obligatory  recognition  of  divorce 
decrees,  so  easily  obtained  in  some  states,  has  been  grossly 
unfair  to  others  in  which  better  standards  are  maintained. 
It  is  unfortunate  that  the  whole  matter  of  determining  the 
legal  grounds  for  divorce  and  of  regulating  the  procedure 
in  such  controversies  was  not  at  the  outset  given  to  Congress 
so  that  it  might  be  dealt  with  uniformly  throughout  the 
country.  This  would  have  saved  the  nation  from  what 
has  proved  to  be,  in  numberless  cases,  a  mockery  of  justice 
and  a  challenge  to  social  morality. 

The  extradition  of  criminals  is  another  obligation  placecl 

2D 


402      THE  GOVERNMENT  OF  THE  UNITED  STATES 


2.  The  ex- 
tradition of 
criminals. 


Extradi- 
tion 
among 
nations. 


How  inter- 
state ex- 
tradition 
differs. 


by  the  constitution  upon  the  several  states.  "A  person 
charged  in  any  state,"  the  provision  reads,  "with  treason, 
felony,  or  other  crime  who  shall  flee  from  justice  and  be 
found  in  another  state,  shall  on  demand  of  the  executive 
authority  of  the  state  from  which  he  fled,  be  delivered  up, 
to  be  removed  to  the  state  having  jurisdiction  of  the  crime."1 

Among  the  nations  of  the  world  the  extradition  or  deliver- 
ing up  of  criminals  is  provided  for  by  treaty  and  is  governed 
by  some  general  limitations  contained  in  these  treaties. 
Between  different  nations  there  is  no  extradition  of  offenders 
unless  the  offence  be  one  enumerated  in  the  treaty.  An 
accused  person,  moreover,  if  he  be  extradited  for  one  crime 
may  not,  on  being  brought  from  his  foreign  place  of  refuge, 
be  placed  on  trial  for  some  different  crime.  It  is  usual  to 
provide  in  extradition  treaties,  again,  that  a  nation  shall 
not  be  bound  to  hand  over  its  own  citizens  to  any  other 
country  nor  to  give  up  persons  charged  with  political  offences. 
Subject  to  these  limitations  a  criminal  who  makes  his 
escape  from  the  United  States  to  another  country  can  now 
be  extradited  or  brought  back.  The  procedure  is  by  a  re- 
quest sent  through  the  Department  of  State  at  Washington 
accompanied  by  various  documents  showing  the  nature  of 
the  charge  against  the  individual  whose  delivery  is  desired. 
These  go  to  the  other  country  through  the  regular  diplomatic 
channels. 

As  between  the  various  states  of  the  Union  the  general 

idea  is  the  same  although  the  detailed  arrangements  and 

jconditions   are   quite   different.2     Extradition  between  the 

\ptates  is  not  subject  to  the  limitations  which  are  imposed 

/upon  international  extradition.     There  is  no  enumeration 

I  of  the  offences  for  which  the  return  of  an  offender  may  be 

requested.     The  words  of  the  constitution  are  "treason, 

felony   or   other   crime."     Nor  is  there   any   rule   against 

extraditing  an  offender  on  one  charge  and  trying  him  upon 

another.     States  freely  give  up  their  own  citizens,  moreover, 

to  be  tried  in  other  states  of  the  Union  when  properly 

asked  to  do  so. 

1  Article  iv,  Section  2. 

2  John  Bassett  Moore,  A  Treatise  on  Extradition  and  Interstate  Rendi- 
tion (Boston,  1891). 


THE  PLACE  OF  THE  STATES  IN  THE  NATION     403 

No  one  may  be  brought  back  to  a  state  for  trial,  however, 
unless  he  is  actually  a  fugitive  from  justice  as  the  words 
of  the  constitution  expressly  require.  A  state  cannot 
demand  the  return  of  any  one,  for  example,  who  was  not 
within  its  jurisdiction  at  the  time  the  offence  is  alleged 
to  have  been  committed. 

The  procedure  in  securing  the  return  of  a  fugitive  is  simple  The  pro- 
enough  .    Legal  proceedings  are  initiated  in  the  state  where  the  ^f^st^te 
offence  was  committed,  and  an  indictment  obtained.     The  extradi- 
arrest  of  the  offender,  wherever  he  happens  to  be,  is  arranged  tlon' 
for.    Then  a  requisition,  signed  by  the  governor  of  the  demand- 
ing state,  is  taken  by  a  police  officer  to  the  governor  of  the 
state  in  which  the  offender  has  taken  refuge.     If  this  requisi- 
tion is  found  to  be  in  proper  form  it  is  honored  by  the  latter  and 
the  prisoner  is  handed  over  to  the  officer  to  take  him  back. 

Occasionally  a  prisoner,  through  his  counsel,  resists  ex-  Mandatory 
tradition,  in  which  case  the  governor  will  hold  a  hearing  ^°^™_ 
to  determine  whether  the  requisition  shall  be  acceded  to.  cretionary 
At  times  the  surrender  of  a  prisoner  is  refused,  although  m  fact* 
there  is  usually  no  disinclination  to  honor  requisitions  when 
they  come  in  proper  form.     But  if  a  governor  should  for! 
any  reason  decline  to  hand  over  an  offender,  there  is  noj 
legal  way  of  compelling  him  to  do  so.     True,  the  words  of  the 
constitution  are  "shall  be  delivered  up" ;   but  the  Supreme 
Court  has  simply  declared  that  it  will  not  undertake  to 
force  any  governor  to  act  against  his  will  in  this  matter. 
The  power  is  mandatory  in  form,  but  discretionary  if  a 
governor  chooses  to  make  it  so.     Happily  there  has  been 
no  considerable  abuse  of  this  discretion. 

While  these  two  obligations  of  interstate  comity  and 
interstate  extradition  are  imposed  upon  the  states  by  the 
federal  constitution  in  express  terms,  there  are  others 
which,  while  not  so  expressed,  may  rightly  be  regarded  as 
of  equal  force.  To  further  the  interests  of  the  whole  Union  The 
the  states  must  provide  the  machinery  for  the  election  of 
senators  and  representatives ;  they  must  place  no  obstacles  tions  of 
in  the  way  of  national  officers  in  the  proper  performance  of  states- 
their  duties ;  they  must  give  loyal  adherence  to  the  spirit 
of  the  constitution  and  by  the  enlightened  character  of 
their  laws  endeavor  to  promote  the  national  prosperity. 


CHAPTER  XXVIII 


The 
original 
state  con- 
stitutions. 


Their 
relation 
to  the 
colonial 
charters. 


THE   STATE   CONSTITUTIONS 

THE  basis  of  state  government  is  the  state  constitution, 
Each  of  the  thirteen  original  states  adopted  a  constitution 
before  1787  and  thus  was  able  to  come  into  the  Union 
fully  organized.  These  constitutions  had  been  adopted 
by  the  states  in  various  ways,  but  in  no  case  save  that  of 
Massachusetts  was  one  of  the  original  state  constitutions 
adopted  by  popular  vote.  In  the  other  twelve  states  the 
ratifying  action  was  taken  by  the  legislature  or  by  a  con- 
vention called  for  the  purpose.  Virginia  was  the  first  to 
provide  itself  with  a  constitution  (1776)  and  Massachusetts 
the  last  (1780). 

These  state  constitutions  were  the  descendants  of  the  old 
colonial  charters.  The  earliest  American  settlements  were 
founded  by  trading  companies  which  were  chartered  by 
the  crown  and  thus  it  was  that  Massachusetts  and  Virginia 
began  their  political  history  as  chartered  colonies.  The 
charter  of  Massachusetts  Bay,  granted  in  1628,  provided 
for  a  frame  of  government  constituted  of  a  governor, 
various  assistants,  together  with  a  "Great  and  General 
Court"  or  assembly  of  freemen.  In  1691  this  charter 
was  revoked  and  a  new  one  issued  with  various  changes. 
This  continued  to  be  the  basis  of  Massachusetts  gov- 
ernment until  it  was  replaced,  after  the  Revolution,  by 
the  state  constitution  of  1780.  This  latter  document  took 
over  bodily  a  large  part  of  the  charter,  retaining  not 
only  much  of  the  old  nomenclature  but  many  of  the  general 
provisions  as  well.1  In  Connecticut  and  Rhode  Island,  the 
other  two  colonies  which  had  succeeded  in  retaining  their 

1  The  constitutional  title  of  the  Massachusetts  legislature,  for  example, 
is  still  "  The  General  Court/' 

404 


THE   STATE  CONSTITUTIONS  405 

charters  down  to  the  eve  of  the  Revolution,  these  charters 
were  transformed  into  state  constitutions  without  any 
substantial  change.  The  remaining  ten  colonies  had  no 
charters  to  perpetuate.  Some  had  never  received  charters ; 
in  others  the  charter  had  been  revoked.  These  colonies  had 
to  devise  new  constitutions,  but  in  so  doing  they  followed 
the  traditional  lines. 

The    adoption    of    the    thirteen    original    constitutions  The  dis- 
established as  a  fundamental  principle  the  distinction  be-  between 
tween  law-making  power  and  constituent  power,  between  "consti- 
ordinary    and    organic    legislation,    between    statutes    and  anT" law- 
constitutions.1     Legislatures  were  set  up  to  make  the  laws ;  making" 
but  their  powers  in  legislation  were  circumscribed  by  the  p 
terms  of  constitutions  which  no  legislature  could  change. 
The  state  constitution  became,  prior  to  1787,  the  supreme 
law   of   the   state.  •  To-day   this   distinction   between   the 
legislative  power  on  the  one  hand  and  the  constituent  power 
on  the  other  has  become  a  commonplace  of  political  science. 
In  the  closing  decades  of  the  eighteenth  century  it  was  quite 
novel,  although  it  cannot  be  said  to  have  been  wholly  un- 
known. 

If  this  distinction  between  the  organic  and  the  ordinary  whence 
laws  of  the  state,  the  constitution  and  the  statutes,  did  not  denved? 
exist  at  the  close  of  the  eighteenth  century  either  in  England 
or  in  the  great  countries  of  continental  Europe,  where  did 
those  who  framed  the  constitutions  of  the  thirteen  original 
American  states  derive  it  ?     It  was  one  of  the  lessons  which 
they  drew  from  their  own   colonial  history.     Before  the 
Revolution,  as  has  been  said,  certain  of  the  colonies  had 
their  charters  from  the  crown.     These  charters  contained 

1  On  the  various  matters  discussed  in  this  chapter  the  following  books 
will  be  found  useful:  J.  A.  Jameson,  A  Treatise  on  Constitutional  Conven- 
tions; Their  History,  Powers  and  Modes  of  Proceeding  (4th  ed.,  N.  Y., 
1887) ;  W.  F.  Dodd,  The  Revision  and  Amendment  of  State  Constitutions 
(Baltimore,  1910) ;  J.  Q.  Dealey,  Growth  of  American  State  Constitutions 
(Boston,  1915) ;  Roger  Sherman  Hoar,  Constitutional  Conventions  (Boston, 
1917) ;  C.  Borgeaud,  The  Adoption  and  Amendment  of  Constitutions  in 
Europe  and  America  (N.  Y.,  1895) ;  and  C.  S.  Lobingier,  The  People's 
Law  (N.  Y.,  1909).  The  constitutions  of  all  the  states  are  printed  in 
F.  N.  Thorpe's  Federal  and  State  Constitutions  (7  vols.,  Washington,  1909) 
and  an  Index  Digest  of  State  Constitutions  was  prepared  for  the  New  York 
Constitutional  Convention  (Albany,  1915). 


406      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Freedom 
of  the 
states 
to  make 
and  change 
their  con- 
stitutions. 


Common 
features 
in  the 
earlier 
state  con- 
stitutions. 

1.   The 
frame  of 
govern- 
ment. 


2.    Separa- 
tion of 
powers. 


3.    Bill  of 
rights. 


various  provisions  relating  to  the  government  of  the  colony 
within  the  bounds  of  which  the  colonial  assemblies  had  to  do 
their  work.  The  assemblies  could  make,  laws  and  regula- 
tions, but  were  restrained  within  the  limits  laid  down  by 
charters  which  only  the  home  government  could  change. 
The  charter  was;  in  a  way,  the  constitution  of  each  colony 
that  had  a  charter;  and  the  people  valued  it  accordingly. 
Naturally  enough,  when  the  colonies  became  states,  they 
sought  to  establish  some  analogous  form  of  security  against 
the  abuse  of  public  authority. 

The  power  to  make  and  to  alter  their  own  constitu- 
tions is  a  power  which  belongs  wholly  to  the  states.  The 
national  constitution  merely  assumes  the  existence  of  this 
power  and  places  various  limitations  upon  it.  Subject  to 
these  limitations  the  states  are  free  to  change  their  con- 
stitutions at  will  and  in  any  manner  they  choose.  Each 
state  decides  for  itself  the  procedure  by  which  a  new  con- 
stitution shall  be  adopted  or  an  old  one  amended.  Of 
the  thirteen  original  constitutions  all  but  one  have  been  sup- 
planted by  new  ones.  Massachusetts  alone  retains  its 
first  constitution  of  1780. 

When  the  earliest  state  constitutions  were  adopted  no 
two  of  them  were  in  all  respects  alike,  although  there  was  a 
general  similarity  among  them  all.  In  each  a  scheme  of 
state  government  was  provided,  consisting  of  a  governor 
(with  sometimes  a  lieutenant-governor),  a  legislature  usually 
of  two  chambers,  and  a  system  of  state  courts.  In  a  few 
there  was  a  specific  provision  that  the  three  departments  of 
government,  executive,  legislative,  and  judicial,  should  be 
kept  distinct  and  that  no  one  of  these  should  ever  assume 
the  functions  which  properly  belonged  to  the  others.1  The 
Massachusetts  constitution  of  1780,  for  example,  set  forth 
this  doctrine  of  divided  powers  in  unambiguous  terms. 
This  doctrine  of  separation  of  powers  did  not  find  its  way 
into  most  of  the  original  constitutions,  but  the  states 
which  did  not  accept  it  at  the  outset  became  converts 
later  on. 

A  few  of  the  earliest  state  constitutions  also  included  a 
bill  of  rights,  in  other  words  a  declaration  of  what  the  framers 
1  See  above,  pp.  47 ff. 


THE  STATE  CONSTITUTIONS  407 

of  these  documents  believed  to  be  the  inalienable  rights  of 
men  in  general  and  of  citizens  in  particular.  Such  rights, 
for  example,  were  the  right  to  freedom  of  speech,  to  freedom 
of  worship,  to  trial  by  jury,  and  to  the  privilege  of  the  writ 
of  habeas  corpus;  the  right  to  a  speedy  and  public  trial, 
and  so  on.  These  were  not  new  rights,  of  course.  They 
had  existed  for  centuries  in  England  and  had  for  the  most 
part  been  fully  recognized  in  the  American  colonies.  But 
here  was  an  opportunity  to  place  them  beyond  the  power  of 
future  governors  or  legislatures  to  destroy.  So  they  were' 
enumerated  in  some  of  the  original  state  constitutions  and 
gradually  found  their  way  into  all  of  them. 

In  all  American  constitutions,  whether  national  or  state,  Historical 
the  bill  of  rights  is  historically  the  most  ancient  and  most  ^See" 
interesting  feature.     It  is  there  that  the  intimate  connection  of  the 
between  American  constitutional  rights  of  to-day  and  the 
hard-won  privileges  of  Englishmen  in  past  centuries  can  be 
most  clearly  traced.     The   political    dogmas,  such  as  the 
right  of  the  people  to  change  their  government,  echo  the 
theories  of  John  Locke  and  the  Puritan  Revolution.     These 
bills    of    rights    embody    in    each    state    constitution    the 
essentials  of  civil  liberty  as  the  American  people  understand 
them. 

Since  1780,  when  the  last  of  the  thirteen  original  states  Later 
framed  its  original  constitution,  thirty-five  other  states  have  ^^j 
been  admitted.     In  every  case  the  framing  of  a  satisfactory  tions. 
state  constitution  has  been  a  prerequisite  of  admission  to 
statehood.     No  state  has  ever  been  admitted  to  the  Union 
without    a    constitution.     Congress    decides    whether    this 
constitution  is  satisfactory ;    it  may  refuse  admission  upon 
this  or  any  other  ground,  but  having  once  admitted  a  state 
Congress  has  no  further  control  over  any  action  which  the 
state  may  take  in   revising  or  amending  its  constitution. 
Arizona,  for  example,  was  at  first  refused  admission  to  the 
Union  because  its  new  constitution  provided  for  the  recall 
of  judges  by  popular  vote.     This  provision  was  omitted ; 
Arizona  was  then  allowed  to  come  in,  but  no  sooner  was  the 
new  state  government  established  than  the  objectionable 
provision  was  restored  to  the  constitution.1 
1  See  also  above,  p.  394. 


408      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Their 
charac- 
teristics. 


The 

tendency 
to  put 
too  many 
things  in 
state  con- 
stitutions. 


Baneful 
effects 
of  this 
policy. 


In  addition  to  provisions  respecting  the  frame  of  govern- 
ment and  a  declaration  of  rights,  American  state  con- 
stitutions contain  many  paragraphs  relating  to  a  wide  range 
of  miscellaneous  matters  such  as  the  militia,  taxation, 
expenditure  and  debt,  impeachment,  local  government, 
education,  and  the  methods  whereby  amendments  may  be 
made.  Whenever,  during  the  last  half-century  a  new  state 
constitution  has  been  framed  by  any  state,  or  an  old  one 
revised,  many  new  provisions  dealing  with  matters  of 
administrative  detail  have  been  put  in.  State  constitutions, 
therefore,  have  steadily  grown  to  be  longer  documents ; 
every  one  of  them  is  now  far  more  exhaustive  than  the 
constitution  of  the  United  States.  Some  of  them  have 
become  veritable  codes  of  law.  The  tendency  is  to  put  more 
things  in  the  constitution  and  to  leave  fewer  things  for  the 
legislature  to  deal  with.  The  first  of  all  the  state  constitu- 
tions, that  of  Virginia,  for  example,  contained  less  than  fifteen 
hundred  words ;  the  present  constitution  of  that  state  runs 
to  more  than  thirty  thousand.  Oklahoma,  to  take  another 
example,  is  not  a  state  which  has  particularly  complicated 
problems  of  government,  yet  its  constitution  contains  more 
than  fifty  thousand  words,  which  is  the  record  for  prolixity. 

This  practice  of  crowding  a  multitude  of  detailed  matters 
into  the  state  constitutions  has  been  unfortunate  in  its 
results.  It  has  multiplied  the  opportunities  for  litigation 
and  has  tended  to  give  a  legalistic  and  technical  tone  to 
discussions  of  social  policy.  Details,  when  placed  in  the 
constitution,  shackle  the  hands  of  both  legislators  and 
courts.  The  more  voluminous  a  constitution  the  more 
quickly  it  loses  touch  with  the  social  and  economic  needs  of  a 
rapidly  growing  community.  The  federal  constitution  has 
been  a  marvel  of  flexibility  because  its  provisions  are  broad 
and  general.  Its  framers  were  wise  enough  to  leave  it 
silent  on  all  matters  which  could  be  trusted  to  work  them- 
selves out  aright  in  the  process  of  time.  The  makers  of 
state  constitutions,  during  the  past  fifty  years,  have  not 
been  so  sagacious.  They  have  too  often  fastened  upon 
future  generations  the  prejudices  and  whims  of  the  moment. 

There  are  two  methods  by  which  a  state  constitution  may 
be  prepared.  The  work  of  drafting  it  may  be  assumed  by 


THE  STATE  CONSTITUTIONS  409 

the  legislature.     That  plan  was  followed  by  some  of  the  thir-  Methods 
teen  original  states.     To-day,  however,  the  other  method,  ^gfrs^"e 
namely,  that  of  having  the  constitution  framed  by  a  conven-  constitu- 
tion chosen  for  that  purpose  is  almost  invariably  followed.   tlons' 
This  body,  the  constitutional  convention,  is  a  distinctively  The 
American  institution.     Its  members,  usually  called  delegates,  ^^s*[tu" 
are  elected  by  the  people.     The  most  common  plan  is  to  conven- 
provide  that  some  shall  be  chosen  at  large  by  the  voters  tlon' 
of  the  entire  state,  while  others,  the  greater  number,  shall  be 
elected  by  districts.     Nominations  are  made  in  such  manner 
as  the  state  laws  provide,  but  the  usual  plan  nowadays  is 
by  a  primary  election.     The  ballots  in  some  cases  bear  no 
party  designations,  and  that  is  the  proper  procedure  to 
follow,  for  the  questions  with  which  a  constitutional  con- 
vention has  to  deal  are  not,  in  the  main,  party  questions. 
Members  of  a  constitutional  convention  are  usually  paid 
for  their  services. 

In  due  course  the  delegates  assemble  in  convention  at 
the  state  capitol,  elect  their  own  presiding  officer,  appoint 
their  committees,  and  proceed  to  the  only  business  of 
the  convention,  which  is  that  of  preparing  the  draft 
of  a  new  constitution  or  suggesting  amendments  to  the 
existing  one.  A  few  state  constitutions  provide  that  a 
convention  must  be  called  at  stated  intervals,  as  for  example 
every  twenty  years  ;  but  most  of  them  make  no  such  stipu- 
lation and  a  convention  is  only  called  when  either  the  legis- 
lature, or  the  people,  or  both  of  them,  decide  to  call  one. 
These  conventions  are  usually  large  bodies,  containing 
from  eighty  to  four  hundred  delegates. 

'  The   superficial   resemblances   between   a   constitutional  Conven- 
convention   and   a  legislature   are  so   numerous    that  the  k°]1sslaand 
fundamental  differences  between  the  two   are    apt  to  be  tures 
overlooked.     A  legislature  is  avowedly  a  partisan  body ;   its  compared- 
members  are  divided  into  two  well-defined  party  groups, 
each  committed  to  the  carrying-out  of  a  party  programme. 
In  a  constitutional  convention,  on  the  other  hand,  party 
lines  are  not  so  sharply  drawn.     Compromises  are  more 
frequent,   for   the   constitutional   convention   is   above   all 
things  a  deliberative  body.     Of  itself  it  can  take  no  final 
action.     All  that  it  prepares  must  go  to  the  people  for  rati- 


410      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Procedure 
of  consti- 
tutional 
conven- 
tions. 


Com- 
mittees. 


Committee 
of  the 
whole. 


fication.1  Compared  with  a  legislature  the  number  of  mat- 
ters with  which  a .  constitutional  convention  has  to  deal 
are  relatively  few  and  they  touch  the  fundamentals  of 
government.  Hence  a  full  and  free  discussion  on  every 
subject  is  not  only  more  practicable  but  more  urgently 
desirable  in  the  latter.  The  rules  of  a  legislature  are 
designed  to  expedite  business;  those  of  a  constitutional 
convention  aim  rather  to  afford  an  opportunity  for  careful 
consideration  without  an  undue  prolongation  of  sessions. 

When  a  constitutional  convention  assembles  it  is  practi- 
cally supreme  with  reference  both  to  its  procedure  and  to  the 
scope  of  its  work.  As  a  rule,  however,  any  delegate  is 
allowed  to  present  written  proposals  as  to  what  the  new 
constitution  should  contain  or  what  amendments  should 
be  made  to  one  already  in  existence.  These  proposals  are 
referred  to  committees  of  the  convention  for  consideration 
and  report.2  Then  they  come  back  to  the  whole  body  to 
be  debated  and  voted  upon. 

As  a  rule,  also,  the  debate  upon  matters  which  are  reported 
by  committees  takes  place  in  committee  of  the  whole.  This 
parliamentary  device,  which,  as  has  already  been  indicated, 
is  used  by  Congress,  permits  informal  discussion  under  a 
general  relaxation  of  the  regular  rules.  In  committee  of 
the  whole  there  are  no  roll-calls,  a  member  may  speak  as 
often  or  as  long  as  he  pleases,  and  when  decisions  are 
reached  they  are  only  provisional.  They  must  be  ratified 
by  the  convention  in  regular  session  before  becoming 
effective.  The  obvious  defect  of  the  plan,  of  course,  is  its 
tendency  to  waste  time.  When  any  large  body  gives  its 
members  the  privilege  of  unlimited  debate,  or  anything 
approaching  it,  the  days  are  likely  to  slip  by  without  due 
progress  being  made. 

1  In  only  one  state  of  the  Union  during  recent  years  has  the  work  of  a 
constitutional  convention  been  put  into  effect  without  popular  ratification. 

2  The  committees  are  usually  appointed    by  the  presiding  officer  of 
the  convention.     The  Michigan  convention  of  1907  had  28  standing  com- 
mittees ;   the  Ohio  convention  of  1912  had  25 ;   the  New  York  convention 
of  1915  had  30,  and  the  Massachusetts  convention  of  1917-1918  had  24. 
In  size  these  committees  ranged  from  5  to  21  members.     The  function  of 
the  committees  is  to  hold  public  hearings  upon  the  various  proposals  and 
on  the  conclusion  of  these  hearings  to  make  recommendations  to  the  con- 
vention. 


THE  STATE  CONSTITUTIONS  411 

The  committee  of  the  whole  reports  its  decisions  to  the 
convention,  which  may  accept  or  reject  them.  Such  as  are 
adopted  go  usually  to  a  committee  on  form  and  phraseology 
for  touching-up.  Then,  when  finally  accepted  by  the  con- 
vention, they  are  ready  for  submission  to  the  people.  Sub- 
Whether  its  resolutions  shall  be  submitted  as  a  whole,  or 
one  by  one,  is  a  matter  for  the  convention  itself  to  decide,  people. 
The  convention  may  submit  an  entirely  new  constitution, 
or  a  revision  of  the  old  one,  or  merely  a  few  amendments. 
So,  also,  the  convention  decides  when  and  how  its  work 
shall  be  submitted,  whether  at  a  regular  or  a  special  election. 
If  it  so  choose  it  may  remain  in  session  to  receive  the  returns 
and  to  announce  the  verdict  of  the  people  on  its  work. 
No  time  limit  is  ordinarily  set  upon  the  duration  of  a 
convention's  sessions.  It  can  continue  in  existence  till 
its  work  is  done.  The  Massachusetts  convention  of  1917- 
1918,  for  example,  sat  from  June  until  November  and  then 
adjourned  until  the  following  summer.  Ordinarily,  how- 
ever, a  constitutional  convention  will  not  long  remain  in 
session  after  the  appropriations  for  the  payment  of  its 
members  have  become  exhausted.  Aside  from  preparing 
and  submitting  a  constitution  or  individual  amendments  a 
convention  has  no  functions.  When  this  work  is  done  it 
dissolves.1 

A  constitutional  convention,  as  has  been  said,  can  decide  Conven 
nothing  finally.  What  it  does  is  merely  to  prepare ;  the 
people  have  the  final  voice  in  ratifying  or  rejecting.  This  powers, 
was  not  so  in  the  early  days.  Twenty-five  states  framed 
their  constitutions  before  1801 ;  but  only  three  of  these 
constitutions  were  submitted  to  the  voters.  As  time  went 
on,  however,  the  practice  of  popular  submission  developed 
steadily.  In  one  or  two  states  of  the  Union,  the  people  have 
not  yet  acquired  this  determining  power,  but  in  the  great 
majority  of  them  nothing  nowadays  goes  into  the  con- 
stitution without  the  assent  of  a  majority  of  those  who  vote 
upon  the  question  at  an  election.  This  requirement  that 

• 

1  For  a  description  of  the  way  in  which  the  work  of  a  constitutional 
convention  is  performed,  see  Bulletin  No.  1  of  the  Massachusetts  Consti- 
tutional Convention  entitled  "The  Procedure  of  Constitutional  Conven- 
tions" (Boston,  1917). 


412       THE  GOVERNMENT  OF  THE  UNITED  STATES 


How  con- 
stitutions 
may  be 
amended. 


1.   By  leg- 
islative 
proposal 
and  pop- 
ular 
ratifi- 
cation. 


2.   By  the 
Initiative 
and  Refer- 
endum. 


Suprem- 
acy of 
the  state 
constitu- 
tion in 
its  own 
sphere. 


Method 
of  in- 
terpret- 
ing it. 


the  people  shall  pass  upon  all  constitutional  changes  is 
America's  most  striking  illustration  of  the  doctrine  of  popu- 
lar sovereignty. 

When  it  is  desired  merely  to  amend  a  state  constitution 
in  certain  definite  particulars  it  is  not  necessary  or  even 
usual  to  call  a  convention  of  delegates.  Most  state  con- 
stitutions provide  simpler  methods  of  amendment.  One 
of  these  ways  permits  the  legislature  (although  sometimes  re- 
quiring more  than  a  majority  vote,  and  sometimes  requiring 
that  the  resolution  be  passed  more  than  once)  to  submit 
proposals  of  amendment.  In  such  cases,  after  it  has  duly 
passed  the  legislature,  the  proposed  amendment  goes  on  the 
ballot,  and  if  accepted  by  the  voters  becomes  an  effective 
part  of  the  constitution. 

The  other  way  is  by  the  use  of  the  initiative  petition. 
This  institution,  which  in  its  application  to  constitutional 
amendments  originated  in  Oregon  in  1902,  will  be  more  fully 
discussed  in  a  later  chapter ;  it  will  suffice  here  to  say  that 
the  voters  of  their  own  accord  may  in  some  states  present 
proposals  of  constitutional  amendment  by  petition.  If  this 
petition  bears  the  requisite,  number  of  valid  signatures, 
the  proposal  goes  by  referendum  to  the  people,  without 
any  affirmative  action  of  the  legislature  being  necessary, 
and  if  adopted  at  the  polls  becomes  a  part  of  the  con- 
stitution. Either  method  allows  the  submission  of  several 
amendments  on  the  same  ballot,  and  almost  every  year,  in 
many  states,  one  or  more  amendments  are  submitted.1 

Within  its  sphere  the  state  constitution  is  supreme. 
It  binds  the  executive,  legislative,  and  judicial  branches  of 
state  government.  The  state  legislature,  in  the  exercise 
of  its  law-making  authority,  must  respect  all  the  limitations 
placed  upon  it  by  the  state  constitution.  In  case  of  con- 
troversy the  highest  court  of  the  state  will  decide  whether 
the  legislative  measure  in  question  is  or  is  not  constitutional. 
As  a  matter  of  judicial  practice  the  courts  always  assume 
that  the  legislature  has  a  power  until  the  contrary  is  shown. 
This  rule,  it  will  be  noticed,  is  just  the  reverse  of  that  applied 
in  interpreting  the  powers  of  the  national  government. 
Congress  is  not  deemed  to  possess  any  power  unless  an  actual 
1  See  also  below,  pp.  505  ff. 


THE  STATE  CONSTITUTIONS  413 

grant  of  that  power  can  be  demonstrated.  If  there  be  any 
reasonable  doubt  as  to  whether  a  measure  passed  by  a  state 
legislature  is  unconstitutional,  the  measure  will  be  upheld. 

Strictly  speaking,  then,  the  only  way  in  which  a  state  Deter- 
legislature  can  determine  whether  any  law  is  constitutional  ^vance"* 
or  not  is  to  pass  it  and  see.     There  is,  however,  a  plan  by  theprob- 
which  some  states  have  managed  to  obtain  authoritative 


opinions  in  advance,  and  thus  to  guard  against  the  passing  tkmaiity 
of  laws  which  would  be  thrown  overboard  by  the  courts.  c 
This  is  known  as  the  plan  of  obtaining  advisory  judicial  ^[j^ 
opinions.     Where  it  is  in  operation  the  governor  or  either  opinions. 
house  of  the  legislature  may  call  upon  the  highest  court 
of  the  state  for  an  opinion  upon  any  constitutional  question 
which  arises  in  connection  with  a  pending  legislative  enact- 
ment.    But   these   opinions,   when   given   by   the   judges, 
are  not  binding  upon  them  in  case  the  same  point  should 
later  arise  in  a  suit  at  law.      They  are  merely  advisory, 
and  being  arrived  at  without  hearing  the  arguments  on  both 
sides  can  never  be  regarded  as  final.     On  the  other  hand 
they  are  usually  safe  enough  to  follow.1 

Year  by  year  it  becomes  increasingly  difficult  to  keep  all  The 
the  laws  of  a  state  within  the  bounds  of  constitutionality. 
This  is  because  state  constitutions  are  steadily  narrowing  constitu- 
the  legislature's  freedom.     Things  which  a  half-century  ago  ^^ 
were  left  to  the  legislators  are  nowadays  being  dealt  with  laws. 
by  constitutional  provision.     This,  no  doubt,  is  a  sign  of 
declining  public  confidence  in  the  wisdom  and  integrity  of 
legislatures.     The  constitutional  convention  is  becoming  not 
only  the  ultimate  but  the  proximate  law-making  body  of  the 
state,  dealing  with  all  fundamental  questions  and  with  a 
great  many  which  are  not  fundamental.     Conventions,  how- 
ever, meet  infrequently,  and  in  the  interim  the  legislature 
must   provide   whatever  laws   are  needed.     The    demand 
for  social  and  industrial  reform  presses  the  legislature  on 
one  side;  the  limitations  of  the  state  constitution  restrain 
it  on  the  other.     Between  the  two  the  plight  of  legisla- 
tors is  often  embarrassing.     To  escape  it  they  sometimes 
enact  laws  which  they  believe  to  be  unconstitutional,  leav- 
ing the  courts  to  take  the  odium  of  destroying  their  work. 
1  See  also  above,  pp.  367-368. 


414   THE  GOVERNMENT  OF  THE  UNITED  STATES 

One  During  the  first  half  of  the  nineteenth  century  state  laws 

were  not  often  declared  to  be  in  contravention  of  state 
constitutions.  The  general  quality  of  legislation  was  good, 
and  in  all  doubtful  cases  the  courts  were  disposed  to  give  the 
legislature  the  benefit  of  the  doubt.  But  now  that  consti- 
tutions have  become  so  prolix  and  intricate,  now  that  laws 
are  passed  in  such  large  numbers  that  circumspection  by 
the  legislatures  is  no  longer  possible,  the  courts  have  quite 
properly  become  less  lenient.  Public  opinion,  or  at  least 
the  loose-thinking  portion  of  it,  is  disposed  to  brand  the 
courts  as  despotic  and  to  assail  them  as  obstacles  in  the  way 
of  social  progress  because  they  fail  to  perform  the  impossible 
task  of  reconciling  exact  constitutional  requirements  with 
slipshod  legislation.  The  real  fault  is  with  the  making  of 
the  constitution,  or  the  laws,  or  both. 


CHAPTER  XXIX 

THE   STATE   LEGISLATURE 


THE  legislature  is  the  paramount  branch  of  American  important 
state  government.     It  makes  the  state  laws,  controls  the  g^te°ie 
appropriations,    and    determines    in    considerable    measure  isiatures 
the    functions    which    the    executive    authorities    perform,  k^110*™ 
Constitutional   limitations   in   steadily   increasing   number  ment. 
have  everywhere  circumscribed  its  authority  ;  the  use  of  the 
initiative  and  referendum  in  many  of  the  states  has  further 
impaired  its  supremacy  ;  while  the  development  of  inde- 
pendent administrative  officials  and  boards  has  taken  from 
it  many  of  its  regulatory  functions.     Yet  the   legislature 
maintains,  on  the  whole,  its  position  as  the    dominating 
branch  of  state  government. 

The  organization  of  the  legislature  differs  from  state  to  General 
state,  but  in  essentials  it  is  everywhere  the  same.     In  every  j^fn  ofZa~ 
state  it  is  made  up  of  two  elective  chambers  with  substan-  the 
tially  concurrent  law-making  powers.     The  upper  chamber,  lature- 
called  the  Senate,  is  the  smaller  of  the  two.     Its  members 
are    elected    from   senatorial    districts   and    their  term    of 
office  is  either  two  or  four  years,  except  in  New  Jersey, 
where  it  is  three  years.    Massachusetts  abolished  annual 
elections  in  1918.     The  lower  chamber,  which  is  variously 
known  as  the  House  of  Representatives,  or  Assembly,  or 
House  of  Delegates,  is  a  much  larger  body;  its  members 
are  chosen  from  smaller  districts  and  the  term  of  office  is 
shorter,  as  a  rule,  being  in  most  states  only  one  or  two  years.1 

1  The  smallest  state  Senate  is  that  of  Delaware,  with  17  members  ; 
the  largest  is  that  of  Minnesota,  with  67.  The  smallest  lower  chambers 
are  those  of  Arizona  and  Delaware,  with  35  members  each;  the  largest 
is  that  of  New  Hampshire,  with  404.  In  New  York  the  Senate  has  51  mem- 
bers and  the  Assembly  150  ;  in  Massachusetts,  the  figures  are  40  and  240  ; 
in  Illinois,  51  and  153  ;  in  Pennsylvania,  50  and  201.  A  table  showing  the 

415 


416      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Why  the 
bicameral 
system 
has  been 
adopted. 


Is  it 

necessary 

to-day? 


Except  in  New  England  the  unit  of  representation  is  almost 
always  the  county,  or  group  of  counties,  or  portion  of  a 
county.  In  New  England  it  is  the  town  or  group  of  towns. 
These  units  are  rearranged  from  time  to  time,  usually  after 
each  decennial  census,  with  a  view  to  making  each  of  them 
approximately  equal  in  population.  This  redistricting  gives 
an  opportunity  for  gerrymandering  which  the  majority  party 
in  the  legislature  almost  invariably  seizes  to  its  own  advan- 
tage.1 

Why  have  all  the  states  adopted  this  double-chamber  or 
bicameral  system?  To  some  extent  the  reason  may  be 
found  in  certain  reputed  merits  of  the  plan,  but  the  influence 
of  the  national  system  has  also  been  important.  Only  a 
few  of  the  thirteen  colonies  had  even  the  semblance  of  a 
bicameral  system,  and  in  their  original  constitutions  after 
the  Revolution  some  of  the  states  made  no  provision  for  an 
upper  chamber.  But  when  a  two-house  Congress  was  pro- 
vided in  the  frame  of  national  government,  the  example  was 
naturally  a  stimulus  to  the  states.  Those  states  which 
began  with  one  chamber  replaced  it  in  due  course  with  two, 
while  new  states,  as  they  were  formed  after  1787,  established 
bicameral  legislatures  one  after  another.  There  also  de- 
veloped in  the  public  mind,  moreover,  a  belief  in  the  use- 
fulness of  a  divided  legislature  as  a  security  against  hasty, 
indiscreet,  secret,  unnecessary,  or  partisan  action,  as  a  pro- 
tection for  the  rights  of  minorities,  and  as  a  part  of  the 
system  of  checks  and  balances. 

These  are  the  grounds  upon  which  the  continuance  of  the 
bicameral  system  is  commonly  justified  to-day,  but  they  are 
not  so  convincing  as  they  were  a  century  ago.  The  danger 
of  hasty  or  secret  action,  under  modern  rules  of  legislative 
procedure,  with  the  printing  of  proposed  measures,  with 
committee  hearings  open  to  all,  with  three  readings  of  every 

membership,  term,  frequency  of  sessions,  and  limit  of  sessions  in  all  the 
states  and  territories  is  printed  in  Bulletin  No.  9  of  the  Massachusetts 
Constitutional  Convention  (1917),  pp.  7-8. 

1  Occasionally,  as  in  New  Jersey,  each  county  is  equally  represented  in 
the  upper  chamber,  no  matter  what  its  population  may  be.  In  Connecticut 
the  lower  chamber  represents  the  towns  irrespective  of  their  population. 
Not  a  few  states  have  so  arranged  the  basis  of  representation  that  the  rural 
districts  get  more  than  their  due  share  of  legislators. 


THE  STATE  LEGISLATURE  417 

measure  in  the  legislature,  with  ample  opportunity  for 
reconsideration,  and  with  a  governor's  veto  power  in  the 
background  —  with  all  these  safeguards  the  opportunities 
for  slipping  measures  upon  the  statute  book  without  pub- 
licity are  very  few.  Nor  does  the  theory  that  one  chamber 
will  exercise  a  wholesome  check  upon  the  other  always  work 
out  satisfactorily  when  put  to  the  test  of  actual  practice. 
Both  chambers  are  made  up  of  party  men.  If  the  same 
political  party  controls  a  majority  in  both,  the  check  imposed 
by  one  House  upon  the  other  is  rarely  of  much  practical 
value  ;  if  different  political  parties  control  the  two  chambers, 
the  checking  or  negativing  of  each  other's  acts  often  becomes 
so  persistent  that  deadlocks  ensue  and  all  progress  with 
important  measures  of  legislation  is  impeded.  There  was 
a  time  when  the  state  Senate,  chosen  by  a  different  electoral 
process  or  with  a  property  qualification  for  membership, 
might  be  said  to  represent  an  aristocracy  of  wealth  or  in- 
tellect, while  the  lower  chamber  reflected  the  interests  of  the 
masses.  To-day  there  is  no  basis  for  any  such  distinction. 
Both  Houses  are  everywhere  chosen  by  the  same  voters,  in 
substantially  the  same  way,  and  with  relatively  unimportant 
differences  as  to  the  qualifications  of  their  members.  The 
only  distinction  between  state  senators  and  representatives 
nowadays  is  that  the  former  are  usually  chosen  by  larger 
districts,  for  a  longer  term,  with  higher  pay,  and  in  the 
natural  course  of  events  are  men  of  greater  political  ex- 
perience. 

The  arguments  for  the  bicameral  system  in  state  govern-  its 
ment  are  not,  therefore,  of  preponderating  weight.  On  the  defects- 
other  hand,  the  division  of  legislative  authority  has  some 
serious  defects.  It  increases  the  cost  and  the  complexity 
of  the  legislative  machinery ;  it  facilitates  and  even  actively 
encourages  the  making  of  laws  by  a  process  of  compromise, 
bargaining,  and  log-rolling ;  it  compels  all  legislative  pro- 
posals to  follow  a  circuitous  route  on  their  way  to  final 
enactment ;  it  provides  countless  opportunities  for  obstruc- 
tion and  delay ;  and  it  makes  easy  the  shifting  of  respon- 
sibility for  unpopular  legislation.  Finally,  it  has  proved  a 
barrier  to  the  planning  of  the  laws.  There  may  be  some 
degree  of  leadership  and  planning  in  each  House,  but  rarely 

2E 


418      THE  GOVERNMENT  OF  THE  UNITED  STATES 

is  there  any  coordination  of  the  work  in  both  chambers  un- 
less some  dominating  governor  oversteps  the  strict  limits  of 
his  own  functions  to  provide  it.  The  bicameral  system  is 
continued;  in  spite  of  its  defects,  because  the  country  has 
become  thoroughly  habituated  to  it  and  because  most  peo- 
ple are  inclined  to  accept,  without  analysis  of  their  merits, 
the  formulas  of  government  which  have  come  down  from 
past  generations.  The  same  system  in  municipal  gov- 
ernment* was  retained  for  many  decades  after  its  short- 
comings had  been  demonstrated  beyond  all  controversy. 
Whether  the  states  could  get  along  as  well,  or  better,  with 
single-chambered  legislatures  is  a  question  which  cannot 
•  be  answered  by  a  discussion  of  probabilities,  but  only  by 
actual  test.  Some  day  a  state  with  radical  inclinations 
will  take  the  step,  just  as  a  few  courageous  cities  took  the 
lead  in  breaking  away  from  the  bicameral  obsession  in 
municipal  government.1 

Methods  Candidates  for  election  to  the  legislature  are  nominated 

natin™1"       *n  ^e  vari°us  states  either  by  a  caucus,  a  convention,  or  a 

state  primary.     The   caucus  method   can  exist  only  where  the 

latures          district  is  so  small  that  the  voters  of  a  party  can  be  brought 

together  in  a  single  meeting.     But  even  in  small  districts 

this  plan  of  nomination  has  largely  gone  out  of  use.     The 

The  convention,  or  body  of  delegates  chosen  by  caucuses  in  vari- 

conven-        ous  Pai"^s  °^  "^ne  district,  still  retains  its  hold  in  some  states, 

tion,  and       chiefly  in  the  South.     The  primary  has  become  the  most 

common  agency  of  nomination.2     Candidates  are  usually 

required  to  secure  the  signatures   of  a  small  number  of 

voters  in  order  to  have  their  names  placed  upon  the  primary 

ballot,  and  at  this  primary  the  voters  of  each  political  party 

determine  which  of  the  various  aspirants  shall  stand  at  the 

election  as  the  authorized  party  candidate.     In  some  cases 

there  is,  at  the  primary,  a  separate  ballot  for  each  party; 

in  others,  all  the  names  are  in  different  columns  on  the  same 

ballot. 

The  direct  primary,  as  a  method  of  nominating  officials 

1  In  two  states,  Oregon  and  Kansas,  t;he  adoption  of  the  single-cham- 
bered plan  has  been  seriously  considered.     In  the  former  the  question  was 
submitted  to  the  voters  in  the  form  of  a  proposed  amendment  to  the  state 
constitution  (1912),  but  was  rejected  by  them. 

2  C.  E.  Merriam,  Primary  Elections  (Chicago,  1912). 


THE  STATE  LEGISLATURE  419 

and  representatives,  was  welcomed  as  a  device  which  would  Purpose 
help  to  raise  the  standard  of  candidacy  at  elections.  The 
old  convention,  it  was  said,  encouraged  manipulation  and 
trickery.  It  allowed  political  bosses  to  put  forward  candi- 
dates who  would  never  be  selected  by  the  rank  and  file  of 
the  voters  on  their  own  initiative.  The  way  to  remedy  that 
situation,  reformers  urged,  was  to  place  directly  in  the  hands 
of  the  people  the  nomination  as  well  as  the  election  of  their 
representatives.  This  would  give  a  fair  chance  to  men  of 
ability  and  independence,  to  men  who  were  not  professional 
politicians,  to  men  who  could  appeal  for  nomination  upon 
their  own  merits  and  not  merely  upon  grounds  of  party 
regularity. 

The  new  method  of  nomination  has  now  had  a  fair  trial.  Has  it 
Has  it  proved  superior  to  the  convention  as  a  means  of  ^hieved 
securing  capable  legislators  in  the  several  states?  On  the  purpose? 
whole,  perhaps  it  has,  although  there  is  no  certainty  in  that 
direction.  At  its  best  the  convention  was  capable  of  mak- 
ing excellent  selections,  the  fruit  of  careful  deliberation.  The 
primary  has  not  often  shown  itself  able  to  reach  as  high  a 
standard.  On  the  other  hand  the  convention  at  its  worst 
could  strike  occasionally  a  plane  of  arrogance,  trickery,  and 
corruption  to  which  a  primary  rarely  if  ever  descends.  In 
a  word,  the  primary  seems  to  afford  protection  against  the 
worst  fault  of  the  convention,  which  was  the  frequent 
selection  of  incapable  and  corrupt  candidates  at  the  behest 
of  a  few  political  leaders.  But  it  has  not,  in  twenty  years 
or  more  of  experience,  demonstrated  that  it  can  achieve 
positive  results  of  a  measurably  satisfactory  character.  It 
has  not  rid  the  states  of  boss  domination ;  it  has  increased 
the  expense  which  every  candidate  must  incur,  and  it  gives 
a  marked  advantage  to  the  man  whose  name  is  well  known 
to  the  voters,  whether  he  be  a  professional  politician  or  not. 
To  say  that  the  primary  secures  on  the  average  somewhat 
better  results  than  the  old  convention  may  be  stating  the 
truth,  but  it  is  not  high  praise. 

State    elections    are    by  secret    ballot,   although   voting  The 
machines  are  sometimes  used.       The  polling  is    in  some 
cases  held  upon  the  same  date  as  the  congressional  and  legislators. 
presidential  elections;  in  others  on  a  different  date.     Each 


420      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Pay  and 
privi- 
leges of 
state 
legisla- 
tors. 


Frequency 
and 

length  of 
legislative 
sessions. 


state,  under  the  constitutional  limitations  already  set  forth, 
determines  who  may  vote  for  members  of  its  own  legislature. 
A  plurality  of  votes  is  ordinarily  sufficient  to  elect.  Only 
one  state,  Illinois,  provides  for  minority  representation.1 
Many  of  the  states  have  laws  for  the  prevention  of  corrupt 
practices  at  elections,  and  in  some  cases  these  laws  impose 
strict  limitations  upon  the  amounts  which  candidates  may 
spend.  Contributions  to  campaign  funds  must  also,  as  a 
rule,  be  made  public. 

Members  of  state  legislatures  are  usually  paid  an  annual 
salary,  which  varies  from  five  hundred  to 'fifteen  hundred 
dollars.  In  some  of  the  states  no  annual  salary  is  fixed,  but 
a  per  diem  rate  of  from  five  to  ten  dollars  is  paid  while  the 
session  lasts.  Usually,  too,  they  are  given  an  allowance 
for  expenses  in  travelling  to  and  from  the  state  capital. 
Their  privileges  of  free  speech  and  their  immunity  from 
arrest  on  civil  process  are  substantially  the  same  as  those 
given  to  members  of  Congress. 

In  most  states  the  legislature  holds  its  regular  sessions 
every  two  years.  In  only  a  few  are  annual  sessions  regularly 
convened.2  These  sessions,  whether  biennial  or  annual, 
ordinarily  continue  for  two  months  or  more  with  brief 
adjournments  from  time  to  time.  In  many  states  the 
constitution  provides  that  the  legislative  session  may  not 
continue  during  more  than  a  prescribed  number  of  days.3 
In  others  the  same  end  is  virtually  achieved  by  a  provision 
that  the  legislators  shall  be  paid  so  much  per  day  for  so 
many  days  and  no  longer.  Special  sessions  may  be  con- 
vened by  the  governor  when  necessary. 

1  Illinois  is  divided  into  51  districts,  each  of  which  elects  three  repre- 
sentatives.    Every  voter  is  allowed  three  votes,  all  of  which  he  may  give 
to  one  candidate,  or  one  to  each,  or  two  to  one  and  one  to  another,  as  he 
chooses.     This  permits  the  minority  to  elect  one  of  the  three  representa- 
tives in  the  district. 

2  These  are  Georgia,  Massachusetts,  New  Jersey,  New  York,  Rhode 
Island,  and  South  Carolina. 

3  The  limit  ranges  from  forty  days  in  Oregon  and  Wyoming  to  ninety 
days  in  Maryland  and  Minnesota,  and  five  months  in  Connecticut.     In 
California  the  legislature   holds  a  thirty-days  session  during  which  bills 
are  introduced.     Then  comes  a  recess  of  equal  length  during  which  the 
legislators  discuss  these  measures  with  the  organizations  and  voters  of  their 
respective  districts.     Following  this  interval  the  legislature  resumes,  with 
no  limit  upon  the  duration  of  its  session. 


THE  -STATE  LEGISLATURE  421 

The  powers  of  state  legislatures  are  broader  and  more  Powers  of 
important  than  the  casual  student  of  American  government 
is  apt  to  realize.1     They  comprise  every  field  of  govern- 
mental activity  not  restricted  by  the  federal  constitution  and 
by  the  constitution  of  the  state  itself.     Those  limitations  Limita- 
upon  the  states  which  are  provided  by  the  federal  constitu-  ^™eon . 
tion  have  already  been  mentioned.     Those  which  the  state  i.  in  the 
constitutions  impose  relate  not  only  to  the  rights  of  the  federal 
citizen,  but  to  many  other  matters  on  which  the  limitations  tution" 
differ  from  state  to  state.     A  few  examples  will  illustrate 
the  general  character  of  these  prohibitions. 

Legislatures  are  sometimes  forbidden  by  the  terms  of  2.  in  the 
their  own  state  constitutions  to  grant  special  charters  to 
municipalities  or  to  private  corporations,  or  to  authorize  tion. 
public  borrowing  beyond  a  fixed  point,  or  to  impose  property 
qualifications  for  voting,  or  to  grant  public  money  to  secta- 
rian institutions  of  education,  or  to  give  perpetual  franchises 
to  public  service  corporations,  or  to  lend  the  state's  credit 
to  private  enterprises,  or  to  change  county  seats  without  the 
consent  of  the  voters  concerned,  or  to  reduce  the  salaries 
of  judges,  or  to  make  discriminations  in  the  tax  laws,  and 
so  forth.  In  addition  to  these  actual  prohibitions  the  state 
constitutions  often  prescribe  in  detail  the  way  in  which 
many  things  shall  be  done  and  even  fix  the  salaries  to  be 
paid  to  state  officials.  The  tendency  is  to  increase  the  num- 
ber and  extent  of  these  restrictive  provisions,  so  that  the 
state  constitutions  have  become  much  more  than  codes  of 
fundamental  law. 

Yet  despite  its  narrowing  sphere  of  action  the  work  of  the  The  broad 
state  legislature  comes  much  nearer  than  that  of  Congress  ^f^ 
to  the  daily  routine  of  the  citizen.     The  state  laws,  for  remains 
example,  provide  for  the  proper  registration  of  a  child's  ^*^n 
birth ;  they  determine  the  qualifications  of  the  physician  limits, 
who  attends  him  during  infancy ;  they  establish  the  schools 
in  which  he  gets  his  education.     When  the  child  becomes  a 
man,  the  state  laws  regulate  the  profession  or  the  trade  he 
enters ;  the  state  laws  enable  him  to  marry,  to  accumulate 

1  For  a  full  survey  of  these  powers,  see  P.  S.  Reinsch,  American  Legis- 
latures and  Legislative  Methods  (N.  Y.,  1907),  especially  chs.  iv-x ;  and  A.  N. 
Holcombe,  State  Government  in  the  United  States  (N.  Y.,  1916),  ch.  v. 


422      THE  GOVERNMENT  OF  THE  UNITED   STATES 


Legis- 
lative 
procedure. 


Modelled 
on  that  of 
Congress. 


The  pre- 
siding 
officers 
of  state 
legis- 
latures. 


property,  to  vote,  to  hold  office;  the  state  laws  provide 
for  the  issuance  of  a  burial  permit  when  he  dies  and  regu- 
late the  transmission  of  his  property  to  his  heirs.  From  his 
birth  to  his  death  the  state  laws,  through  the  agency  of 
subordinate  municipal  authorities,  provide  the  citizen  with 
police  protection,  with  redress  for  wrongs  done  to  him,  with 
highways  and  sanitation,  with  libraries  and  recreation  facil- 
ities. The  state  laws  determine  most  of  the  taxes  which  he 
pays ;  they  impose  penalties  upon  him  when  he  does  wrong. 
The  state  laws  reach  out  into  the  shops  and  factories,  regu- 
lating the  hours  and  conditions  of  labor.  They  provide 
for  the  care  of  the  poor,  the  insane,  and  the  delinquents 
of  all  ages.  Where  federal  statutes  touch  the  citizen  once, 
the  state  laws  influence  his  actions  a  hundred  times.  The 
average  citizen  does  not  realize  all  this  because  he  has 
become  so  completely  habituated  to  it. 

In  the  exercise  of  its  lawmaking  function  throughout  this 
broad  expanse  of  jurisdiction  each  state  legislature  deter- 
mines its  own  forms  and  rules  of  procedure.  Practically 
all  of  them,  however,  have  followed  the  general  example  of 
Congress,  so  that  legislative  procedure  in  all  the  states  is 
not  far  from  uniform.  This  applies  to  the  presiding  officer 
of  each  House,  the  system  of  committees,  the  methods  by 
which  the  two  chambers  take  action  upon  pending  measures, 
and  the  general  rules  of  debate. 

As  for  the  presiding  officers,  the  influence  of  the  federal 
analogy  is  everywhere  apparent.  When  a  state  has  a 
lieutenant-governor,  he  usually  (but  not  always)  presides 
over  the  state  Senate  just  as  the  Vice-President  of  the 
United  States  is  the  presiding  officer  in  the  upper  house  of 
Congress.  Otherwise  the  state  Senate  chooses  its  own 
chairman,  usually  calling  him  the  president  of  the  Senate. 
The  lower  chamber  of  the  state  legislature  chooses  its  own 
Speaker.  In  practice,  the  choice  is  first  determined  by  a 
caucus  of  the  members  of  that  political  party  which  controls 
a  majority  in  the  House  and  is  then  formally  ratified  by  the 
chamber  as  a  whole.  This  Speaker  has  the  usual  functions 
of  a  presiding  officer,  including  in  most  legislatures  the  duty 
of  appointing  all  members  of  committees  from  his  own 
chamber.  Each  House  of  a  state  legislature  also  chooses 


THE  STATE  LEGISLATURE  423 

its    other    officers,    chaplain,    clerk,  sergeant-at-arms,   and 
messengers. 

Much  of  the  preliminary  work  of  state  legislation  is  per-  Legis- 
formed  by  committees,  and  every  legislature  maintains  a 
considerable  number  of  these  subordinate  bodies.  There 
may  be  separate  committees  for  each  chamber,  appointed 
in  each  case  by  the  presiding  officer,  or  there  may  be  joint 
committees  made  up  of  members  from  both  chambers.  In 
size  the  committees  vary,  running  from  as  few  as  five  to  as 
many  as  twenty-one  members  or  more.  The  committees 
are  also  of  varying  degrees  of  importance.  Some  of  them, 
such  as  the  committees  on  finance,  or  ways  and  means,  on 
rules,  on  the  judiciary,  on  labor  and  industries,  on  cities,  on 
education,  on  public  institutions,  and  on  public  utilities  may 
have  a  great  deal  to  do.  Others,  such  as  those  on  printing, 
on  fisheries  and  game,  on  pensions,  and  on  federal  relations 
may  have  very  little.  In  addition  to  these  regular  or 
standing  committees  there  are  special  committees  which 
are  appointed  whenever  the  occasion  arises. 

Every  measure  introduced  into  either  House  of  the  legis-  Their  < 
lature  is  forthwith  referred  to  the  appropriate  committee.  functlons- 
There,  in  regular  order,  hearings  are  held,  and  at  those  hear- 
ings both  the  supporters  and  opponents  of  the  measure 
are  entitled  to  appear.  In  some  states,  Massachusetts 
included,  the  rules  require  that  a  hearing  shall  be  adver- 
tised upon  every  measure,  and  that  before  a  certain  date 
every  matter  referred  to  a  committee  shall  be  reported  back, 
favorably  or  otherwise,  to  the  legislature.  In  some  other 
states  such  hearings  are  not  held  except  upon  important 
matters,  or  when  asked  for,  and  committees  are  not  under 
any  obligation  to  report  upon  every  proposal  that  is  turned 
over  to  them.  Hence  in  some  state  legislatures,  as  also  in 
Congress,  matters  may  die  in  committee ;  that  is,  may  be 
left  on  the  committee's  files  without  any  action  until  the 
legislative  session  ends. 

The  committee  system  in  its  actual  operation  among  the 
several  states  has  displayed  great  merits  and  equally  grave 
defects.  Legislation  without  the  aid  of  committees  is 
practically  impossible  so  long  as  legislatures  retain  their 
present  size,  for  only  by  some  such  division  of  labor  can  the 


424      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Merits 

and 

faults 

of  the 

committee 

system 

in  the 

state 

legislatures. 


Frequent 
disregard 
of  com- 
mittee 
recommen- 
dations. 


Impor- 
tance of 
legisla- 
tive pro- 
cedure. 


huge  grist  of  bills  be  given  any  consideration  at  all.  Where 
the  committees  are  intelligently  constituted  the  committee 
system  means  that  all  measures  are  intrusted  for  preliminary 
consideration  to  those  legislators  who  know  most  about 
them.  Legislators  who  sit  on  the  municipal  committee  of 
a  state  legislature,  for  example,  inevitably  learn  a  good  deal 
about  city  problems  and  become  after  a  while  the  legisla- 
ture's experts  in  that  field.  In  principle,  therefore,  the 
committee  system  is  sound.  The  trouble  is  that  too  often 
the  committees  are  not  properly  constituted,  but  are  made 
up  by  a  process  of  political  trading.  Their  members  fre- 
quently have  neither  interest  in  the  measures  before  the 
committees  nor  desire  to  learn  much  about  them. 

Another  feature  which  is  destructive  of  efficient  committee 
work  is  the  too  frequent  tendency  of  the  legislature  to  dis- 
regard the  reports  of  its  committees  and  by  its  own  votes 
to  reject,  without  adequate  reason,  the  decisions  which 
committees  have  arrived  at  after  prolonged  discussion. 
It  is  true  that  in  most  legislatures  the  recommendation  of 
a  committee,  particularly  if  it  is  made  unanimously,  carries 
considerable  weight ;  but  nowhere  is  there  any  certainty  that 
such  recommendation  will  be  accepted.  Traditions  and 
practice  in  this  matter  differ  greatly  among  the  states,  but 
in  general  it  can  be  said  that  the  unconcern  with  which 
legislatures  set  aside  the  work  of  their  own  committees  is 
a  serious  weakness  in  the  American  system  of  lawmaking. 

The  details  of  legislative  procedure  are  too  complicated 
to  be  set  forth  in  brief  form  without  the  risk  of  serious 
inaccuracy.1  Yet  this  is  a  branch  of  the  subject  which 
cannot  be  entirely  omitted  from  any  discussion  of  American 
government,  however  general.  The  spirit  and  form  of  the 
laws  are  determined  in  some  measure  at  least  by  the  system 
of  legislative  procedure.  The  quality,  of  the  statute  book 
depends  thereon.  Simplicity  of  procedure  is  essential  to 
the  making  of  good  laws.  On  the  other  hand  a  certain 
amount  of  intricacy  and  formality  is  necessary  to  insure 
that  laws  shall  not  be  made  or  unmade  hastily,  or  in  obedi- 
ence to  the  dictates  of  prejudice  and  excitement.  American 

1  A  full  description  may  be  found  in  H.  W.  Dodds,  Procedure  in  State 
Legislatures  (Philadelphia,  1918). 


THE  STATE  LEGISLATURE  425 

legislative  procedure  has  been  severely  criticised  because  of 
its  complexity,  and  it  is  indeed  over-complex ;  but  lawmaking 
is  a  serious  business  and  must  be  carried  on  under  adequate 
safeguards.  It  is  wiser  to  tolerate  a  system  which  slows 
down  the  process  of  legislation  than  to  incur  the  danger  of 
letting  unjust  or  untimely  measures  pass  too  easily.  Even 
with  the  restraint  of  cumbrous  procedure  the  output  of 
legislation  is  prodigious.  What  would  it  be  if  the  barriers 
were  cut  away? 

Let  a  single  state  serve  to  illustrate  the  successive  steps  How  a 
which  must  be  taken  in  the  process  of  legislation  from  the  j*a*se 
introduction  of  a  measure  to  its  final  enactment.     Massa-  lature 
chusetts  furnishes  an  appropriate  example  for  this  purpose,  enacts 
because  its  rules  of  legislative  procedure  have  long  since 
become  firmly  established  and  because  impartial  students 
of  the  subject  have  commended  the  Massachusetts  system 
of  lawmaking  as  worthy  to  serve  as  a  model  elsewhere. 
"The  General  Court  of  Massachusetts,"  Professor  Reinsch 
declares,  "is  in  all  respects  nearest  the  people  and  the  most 
responsive  to  public  opinion  of  any  American  legislature."  1 

As  between  Massachusetts  and  the  other  states  there  is  Variety 
no  great  difference  in  the  printed  rules  of  legislative  pro- 
cedure;  it  is  in  the  interpretation  and  application  of  the  such 
rules  that  the  difference  arises.  In  Massachusetts  the  rules  matters- 
are  followed  with  scrupulous  fidelity  ;  in  many  of  the  others 
they  are  honored  by  frequent  suspension  or  evasion.  Even 
when  the  state  constitution  requires  that  bills  shall  be  read 
verbatim  before  final  passage,  or  passed  through  their  suc- 
cessive stages  on  different  days,  these  requirements  are  often 
evaded  by  a  merely  fictitious  compliance  which  is  set  down 
upon  the  official  records  as  a  compliance  in  fact.  In  these 
states  no  one  can  get  an  exact  idea  of  the  actual  procedure 
by  merely  reading  the  rules. 

In  Massachusetts  the  first  step  in  the  making  of  a  law  is  i.  The 
the  presenting  of  a  petition  accompanied  by  a  bill.2  Any  *£^on 
citizen  may  present  a  petition ;  that  is  his  constitutional  of  a  bill. 

1  P.  S.  Reinsch,  American  Legislatures  and  Legislative  Methods  (N.  Y., 
1907),  p.  174. 

2  In  nearly  all  the  other  states  no  petition  is  necessary,  the  bill  itself 
being  sufficient. 


426      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Provi- 
sion for 
bill- 
drafting 
by 
experts. 


Restric- 
tions on 
the  intro- 
duction 
of  bills. 


2.   The 

first 
reading 
and  the 
reference 
to  a 
committee. 


privilege.  One  signature  is  enough.  Getting  the  bill 
properly  drafted  is  not  so  simple,  however,  hence  a  great 
many  measures  are  presented  in  ungainly  form,  with  pro- 
visions crudely  expressed,  ambiguous  in  wording,  and  other- 
wise defective.  The  trouble  is  that  we  assume  the  com- 
petence of  any  citizen  to  frame  a  law,  an  assumption  which 
may  have  had  some  warrant  in  early  days  when  conditions 
of  life  were  simple,  but  which  in  its  application  to  the  intri- 
cate mechanism  of  modern  society  is  a  gross  absurdity. 

The  proper  drafting  of  a  law  requires  skill  and  experience. 
In  recognition  of  that  fact  some  legislatures  have  made 
provision  for  the  maintenance  of  legislative  reference 
bureaus,  with  expert  officials  whose  function  it  is  to  draft 
measures  whenever  requested,  and  to  procure  for  legislators 
any  additional  data  or  information  that  may  be  desired. 
It  is  only  by  some  such  provision  that  legislatures  can  be 
spared  the  hopeless  task  of  straightening  out  all  the  incon- 
sistencies and  ambiguities  of  bills  which  have  been  prepared 
by  amateurs. 

The  Massachusetts  rules  require  that  some  member  of 
either  the  Senate  or  House  of  Representatives  shall  indorse 
each  petition  for  legislation  before  it  is  formally  presented. 
This  does  not  mean  that  the  member  approves  the  petition  ; 
it  is  merely  a  way  of  making  sure  that  petitions  are  pre- 
sented in  good  faith.  Bills  may  be  introduced  in  either 
House,  at  the  discretion  of  the  petitioner,  but  must  be  filed 
before  a  certain  date,  otherwise  they  can  be  introduced  only 
under  suspension  of  the  rules,  and  this  requires  a  four-fifths 
vote  in  each  chamber.  As  a  practical  matter  all  such  re- 
quests for  the  suspension  of  rules  go  first  to  the  Committee 
on  Rules,  and  on  its  recommendations,  in  most  cases,  the 
request  is  granted  or  denied. 

When  bills  are  introduced,  they  are  read  by  title  only. 
Thereupon  the  presiding  officer  refers  each  bill  to  an  appro- 
priate committee.  Ordinarily  there  is  no  doubt  as  to  what 
committee  should  have  a  particular  measure.  Bills  relating 
to  taxation  go  to  the  committee  on  taxation ;  those  relating 
to  city  affairs  to  the  committee  on  cities.  Those  affecting 
the  courts  go  to  the  committee  on  the  judiciary  ;  those  relat- 
ing to  labor  to  the  committee  on  labor  and  industry.  But 


THE  STATE  LEGISLATURE  427 

occasionally  a  measure  comes  forward  dealing  with  some 
matter  which  seems  to  be  on  the  border  line  between  the 
jurisdiction  of  two  different  committees.  Take  the  subject 
of  workmen's  compensation,  for  instance.  Should  a  bill 
relating  to  that  matter  go  to  the  committee  on  labor  and 
industry,  or  to  the  committee  on  insurance,  or  to  the 
committee  on  social  welfare  ?  In  such  cases  the  assignment 
made  by  the  presiding  officer  may  be  discussed  by  the 
legislators  and  possibly  overruled.  Or  a  compromise  may  be 
made  by  referring  the  bill  to  two  committees  sitting  jointly. 

What  happens  after  a  bill  reaches  the  committee?  The  3.  The 
first  step  is  to  place  it  on  the  committee's  calendar  and  to 
assign  a  date  for  a  public  hearing  upon  it.  When  that  date  and 
arrives,  the  hearing  is  held.  Advocates  and  opponents  of  rePort- 
the  measure  appear  and  argue  for  or  against  it.  Sometimes 
the  hearing  may  take  an  hour  or  less ;  sometimes  it  may 
continue  all  day  or  for  several  days.  When  both  sides  have 
had  their  say,  the  hearing  is  closed  ;  the  committee  goes  into 
executive  session  and  decides  whether  it  will  report  favora- 
bly or  unfavorably.  Or  the  committee  may  postpone  this 
decision  until  some  convenient  time  several  days  or  even 
weeks  after  the  hearing  is  over.  In  Massachusetts  each 
legislative  committee  must  report  before  a  given  date  upon 
every  matter  referred  to  it.  In  Congress,  it  will  be  recalled, 
there  is  no  such  requirement. 

When  a  committee  sends   back  a  bill  with  its  report,  4.  The 
favorable  or  unfavorable,  it  is  listed  upon  the  calendar  of  j^™1*" 
the  House  or  the  Senate  as  the  case  may  be,  and  in  due  report 
course  comes  before  the  whole  chamber  for  action.     There  Presented. 
the  committee's  report  may  be  accepted  or  rejected ;  in  the 
former  case  the  measure  is  advanced  to  its  next  stage.     The 
chief  debate  takes  place  at  this  point,  namely,  the  second  5.  Second 
reading.     If  not  defeated  at  that  point,  it  is  placed  on  the  reading, 
calendar  for  a  third  reading,  being  referred   meanwhile  to 
a   committee  on  Bills  in  the  Third    Reading  for   careful 
inspection  and  for  any  verbal  changes  that  may  be  needed. 
When  reached  again  on  the  calendar,  a  further  discussion  6.  other 
may  take  place,  although  that  is   not    customary.     Hav-  steps  in 

i  £    ^i  -     i  -.   •  11,1  i  i    legislation. 

ing  passed  its  third  reading,  it  is  ordered  to  be  engrossed  and 
then  forwarded  to  the  other  chamber.  There  it  must  go 


428      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Lawmaking 
a  tedious 
process. 


Urgent 
measures. 


The 

intricate 
proced- 
ure does 
not  guar- 
antee the 
quality 
of  legis- 
lation. 


through  a  similar  course  of  three  readings.  If  the  other 
chamber  makes  no  amendments,  the  measure  is  finally 
enacted  and  goes  to  the  governor  for  his  signature.  But 
any  amendment,  however  unimportant,  brings  the  bill  back 
to  the  original  chamber  for  concurrence,  and  in  case  the  two 
Houses  fail  to  agree,  a  committee  of  conference,  representing 
both  chambers,  is  named  to  effect  a  compromise  if  possible. 
If  the  committee  fails  to  reach  a  satisfactory  compromise,  the 
bill  is  dead,  but  relatively  few  measures  perish  in  this  way. 

It  will  be  seen,  therefore,  that  the  making  of  a  state  law 
is  a  long  process.1  It  is  even  longer  than  the  foregoing 
outline  would  indicate,  because  reconsideration  may  be 
moved  at  almost  any  stage.  Important  bills  often  take 
several  weeks  and  even  months  in  going  through  their 
various  stages.  Emergency  measures  can  be  rushed  through 
in  a  few  days,  but  only  under  suspension  of  the  rules,  and 
this  requires  unanimous  consent. 

Notwithstanding  all  this  formality  in  the  way  of  committee 
hearings,  reports,  three  readings  in  each  chamber,  and  fre- 
quent motions  to  reconsider,  the  fact  remains  that  many 
measures  go  through  the  legislature  without  being  even  read 
by  any  considerable  portion  of  the  members.  The  elaborate 
mechanism  of  legislation  is  depended  upon  to  accomplish 
what  can  never  be  secured  without  patient  study  and  care 
on  the  part  of  the  legislators  themselves.  The  result  is  seen 
in  the  all-too-common  enactment  of  laws  which  contain 
"jokers";  or  provisions  which  on  careful  scrutiny  are  not 
what  they  appear  to  be  at  the  first  glance.  Provisions  in- 
consistent with  each  other,  and  even  ludicrous  absurdities, 
are  sometimes  found  in  bills  after  they  have  passed  through 
all  their  stages.  Measures  are  occasionally  passed  without 
enacting  clauses  or  without  some  other  indispensable 
feature.  These  mishaps  are  not  peculiar  to  any  one  state. 
They  are  common  in  them  all.2  The  reason  is  plain  enough. 

1  The  reader  who  is  interested  in  the  scope  and  methods  of  lawmaking 
in  the  United  States  may  be  referred  to  Chester  Lloyd  Jones,  Statute  Law 
Making  (Boston,  1912). 

2  A  few  examples : 

"If  any  stallion  escape  from  his  owner  by  accident,  he  shall  be  liable  for 
all  damages,  but  shall  not  be  liable  to  be  fined  as  above  provided." 

"No  one  shall  carry  any  dangerous  weapon  upon  the  public  highways 


THE  STATE  LEGISLATURE  429 

It  is  everybody's  business  to  see  that  defects  are  weeded 
out  of  a  bill  during  the  time  it  is  under  consideration.  This 
means  that  it  is  nobody's  business.  Prolonged  and  varied 
formalities  are  substituted  for  individual  scrutiny.  There 
is  too  much  of  the  one,  too  little  of  the  other. 

American  state  legislation  has  not  set  a  high  standard  Reasons 
either  in  form  or  in  substance.     The  popular  tendency  to  ^ferior 
look  upon  law  as  the  remedy  for  all  political,  social,  and  quality 
economic  evils  is  one  fundamental  reason  for  this.     Legis- 
lation  in  America  has  been  called  upon  to  perform  functions 
which  in  all  other  countries  are  turned  over  to  administra- 
tive officials  with  discretionary  power.     The  laws  which  are 
annually  enacted  by  the  legislature  of  Massachusetts  fill 
two  large  volumes;  the  forty-eight  states   of  the  Union 
produce  nearly  thirty  thousand   pages   of   statutes   every 
session.     A  large  part  of  this  annual  production  is  rushed 
through  by  the  use  of  rapid-fire  methods  in  the  closing  days 
of  legislative  sessions.     Small  wonder  it  is  that  under  such 
conditions  a  sizable  portion  of  it  should  prove  to  be  of  in- 
ferior quality. 

There  are  other  reasons,  too,  why  so  many  state  laws 
prove  unsatisfactory.  The  haphazard  way  in  which  bills 
are  drafted,  without  attention  to  clearness  or  brevity,  is 
responsible  for  a  share  of  the  trouble.  The  absence  of 
recognized  legislative  leadership,  due  to  the  separation  of 
executive  and  legislative  organs,  is  another  feature  which 
has  encouraged  careless  lawmaking.  The  attempt  to  make 
formalities  of  procedure  take  the  place  of  personal  alert- 
ness on  the  part  of  legislators  has  proved  a  failure.  Over- 
production of  laws,  however,  is  the  fundamental  difficulty. 
The  legislative  promoter  or  lobbyist  who  earns  his  living 
by  buttonholing  legislators  in  favor  of  one  measure  and 
against  another,  being  paid  in  either  case  by  interested 

except  for  the  purpose  of  killing  a  noxious  animal,  or  a  police  officer  in  the 
discharge  of  his  duty." 

"All  carpets  and  equipment  used  in  offices  and  sleeping  rooms  of  hotels 
and  lodging  houses,  including  walls  and  ceiling,  must  be  well  plastered  and 
kept  in  a  clean  and  sanitary  condition  at  all  times." 

"Any  seven  persons,  residents  of  the  state,  may  organize  a  co-operative 
association  with  capital  stock  .  .  .  provided  however,  that  not  more  than 
one-tenth  of  said  capital  stock  shall  be  held  by  any  one  stockholder." 


430      THE  GOVERNMENT  OF  THE  UNITED  STATES 

outside  parties,  has  been  a  contributory  factor  to  this  orgy 
of  lawmaking.  The  British  parliament  passes  fewer  laws 
for  fifty  million  people  each  year  than  the  Massachusetts 
legislature  enacts  for  four  million.  That  is  because  in 
Great  Britain  matters  of  detail  are  left  to  the  discretion  of 
administrative  authorities  and  are  not  allowed  to  cumber 
the  law  books. 

Con-  Every  statute  that  passes  a  legislature  affords  a   basis 

elusion.  £or  future  amendments,  elaborations,  or  repeals.  "  Once 
begin  the  dance  of  legislation  and  you  must  struggle  through 
its  mazes  as  best  you  can  to  its  breathless  end  —  if  any  end 
there  be." l  The  social  and  economic  system  of  the  United 
States  has  become  extraordinarily  complex  during  the  last 
half  century.  The  task  of  adjusting  legislation  to  it  has 
become  correspondingly  difficult,  requiring  far  greater 
caution,  sagacity,  and  courage  on  the  part  of  those  who 
make  the  laws  of  the  land,  and  also  requiring  more  efficient 
machinery  for  lawmaking.  Legislators  have  not,  however, 
improved  in  quality  during  this  period,  nor  has  the  machin- 
ery of  legislation  been  greatly  bettered.  The  trouble,  there- 
fore, is  not  merely  on  the  surface  but  in  the  foundations 
of  American  state  government.  Its  elimination  calls  for 
a  considerable  reconstruction,  and  not  merely  for  a  few 
minor  changes. 

1  Woodrow  Wilson,  Congressional  Government  (N.  Y.,  1884),  p.  297. 


CHAPTER  XXX 

THE   GOVERNOR 

EVERY  state  of  the  Union  recognizes  in  its  scheme  of  Organi- 
government  the  principle  of  checks  and  balances.     Each  ^£e 
state  accordingly  has  established  an  executive  department,  state  ex- 
independent    of   the   legislature   and   possessing   executive  ^an- 
powers    only.     This    executive    department    consists    of    a  ments. 
governor   and   various   state   officials.     As   to    these   state 
officials   there   is    considerable  variation,   but  most  of  the 
states  have  a  lieutenant-governor,  a  secretary  of  state,  a 
treasurer,  an  attorney-general,  an  auditor,  and  a  superin- 
tendent of  education.     Many  have  other  executive  officials, 
such  as  a  superintendent  of  public  works,  a  commissioner 
of  agriculture,  a  superintendent  of   insurance,  and  a  tax 
commissioner.     Nearly  all  of  the  states  have  various  ad- 
ministrative   boards,    such   as  boards   of    health,    public 
service  commissions,  boards  of  charity,  and  the  like,  whose 
functions    will   be    described    in    the    next    chapter.     The 
governor  is  the  dominating  figure  of  this  whole  executive 
group. 

The  office  of  state  governor  is  the  oldest  executive  post  The 
in  America.1     More  than  three  hundred  years  ago,  before  °^ceer°* 
the  first  colonial  assembly  was  called  into  existence,  the  itshis- 
position  of  governor  made  its  first  appearance  in  Virginia,  'tory< 
and  it  has  continued  as  an  American  political  institution 
ever  since.2     Each  of  the  thirteen  colonies  had  a  governor 
in  the  days  before  the  Revolution ;  in  two  of  them  the  office 
was  elective,  in  the -others  it  was  appointive,  the  power  of 
appointment  resting  either  with  the  crown,  as  in  Massa- 

1  E.  B.  Greene,  The  Provincial  Governor  (N.  Y.,  1898). 

2  The  title  of  the  office  came  directly  from  the  official  terminology  of 
the  trading  companies. 

431 


432      THE  GOVERNMENT  OP  THE  UNITED  STATES 


Term 
and 

method  of 
election. 


Removal 
of  gov- 
ernors 
by  im- 
peachment. 


chusetts,  or  with  the  colonial  proprietor,  as  in  Pennsylvania. 
When  the  colonies  became  states  and  adopted  their  own 
constitutions,  they  provided  in  every  case  for  continuing  the 
office  of  governor,  but  placed  it  upon  a  responsible  basis. 
In  a  few  of  the  states  the  function  of  electing  the  governor 
was  given  to  the  people,  but  in  most  of  them  it  was  left  to 
the  legislature.  Gradually,  however,  the  latter  plan  was 
abandoned,  and  to-day  in  each  of  the  forty-eight  states  the 
governor  is  chosen  by  popular  vote.1 

The  term  of  the  governor  is  either  two  or  four  years. 
It  is  four  years  in  Pennsylvania,  Virginia,  Missouri,  and 
several  other  states.  Two  years  is  the  more  common 
term.  Governors  in  nearly  all  the  states  are  eligible  for 
reelection,  and  in  those  states  where  the  term  is  short,  re- 
elections  are  common.  There  are  various  formal  require- 
ments as  to  citizenship,  length  of  residence  in  the  state,  and 
age,  but  no  property  qualification  is  now  necessary,  except 
in  a  few  states.  Everywhere  candidates  are  nominated 
either  by  a  party  convention  or  at  a  primary ;  the  election 
is  in  all  cases  by  secret  ballot,  and  a  plurality  of  votes  is 
ordinarily  sufficient  to  determine  a  choice.  In  a  few  states, 
however,  a  majority  is  required ;  otherwise  the  choice  is 
made  by  the  legislature.  The  elections  everywhere  are 
party  contests ;  but  in  states  where  one  political  party  is 
largely  in  the  majority  the  real  struggle  for  the  governorship 
takes  place  in  the  primary.  Salaries  of  governors  range 
from  $2500  in  Vermont  to  $12,000  in  Illinois. 

All  state  constitutions  make  some  provision  for  filling  the 
governor's  post  in  case  it  should  become  vacant  during  the 
term  for  which  he  was  elected.  Such  vacancy  may  be  by 
reason  of  the  governor's  death  or  through  his  conviction  and 
removal  on  impeachment.  The  constitutions  of  nearly  all 
the  states  make  provision  that  the  governor  and  other  civil 
officers  shall  be  liable  to  impeachment  for  crime  or  mis- 
conduct in  office.  The  lower  house  of  the  legislature,  follow- 
ing the  federal  analogy,  has  the  power  to  begin  the  impeach- 
ment proceedings ;  the  upper  house  as  a  rule  hears  and 
determines  the  issue.  Occasionally,  as  in  New  York,  the  jus- 

1  He  is  chosen  by  direct  popular  vote  in  all  the  states  but  one.  The 
exception  is  Mississippi,  where  the  choice  is  made  indirectly  by  the  people. 


THE  GOVERNOR  433 

tices  of  the  highest  state  court  sit  with  the  upper  chamber 
during  the  trial.  A  verdict  of  conviction,  which  usually 
requires  a  two-thirds  vote,  ousts  the  governor  from  office 
and  may  disqualify  him  from  holding  in  the  future  any  civil 
office  in  the  state's  service.  As  a  matter  of  history  very 
few  governors  have  been  brought  to  book  in  this  way  and 
convictions  resulted  in  only  about  half  these  cases. 

In  a  few  states  the  governor  may  be  removed  from  office  Removal 
by  recall.     This  involves,  as  will  be  explained  a  little  later,  by  recalL 
the  presenting  of  a  petition  bearing  a  designated  number  of 
signatures  with  the  request  that  the  matter  of  removing  the 
governor  from  office  before  the  expiring  of  his  full  term 
be  placed  before  the  voters  on  the  ballot  at  an  election.  . 
Reasons,  as  a  rule,  must  be  given  in  the  petition  for  a 
governor's  recall,  but  they  need  not  amount  to  allegations 
of  misconduct  such  as  would  be  required  for  an  impeach- 
ment.    Thus  far  no  governor  has  been  removed  by  means 
of  the  recall  procedure. 

When  a  governor  is  convicted  on  impeachment,  or  dies  in  HOW  a 
office,  he  is  succeeded,  according  to  the  provisions  made  in  J^Jcy 
more  than  two-thirds  of  the  states,  by  the  lieutenant-gov-  govemor- 
ernor.     This  official  is  ordinarily  chosen  for  the  same  term  as 
the  governor  and  by  the  same  process  of  popular  election. 
His  main  function,  apart  from  that  of  being  heir-apparent, 
is  to  preside  at  sessions  of  the  upper  branch  of  the  state 
legislature  and  in  a  few  states  at  meetings  of  the  governor's 
council.     Failing    the    lieutenant-governor    (or    in    states 
where  there  is  no  such  officer),  the  succession  usually  passes 
to  some  designated  state  official  or  to  the  Speaker  of  the 
lower    chamber,  as   the    constitution    may  provide.     If    a 
governor  is  removed  by  means  of  the  recall,  however,  this 
order  of  succession  does  not  go  into  effect.     His  successor 
is  elected  by  the  people. 

The  powers  of  the  governor  are  for  the  most  part  executive 
powers.1  The  theory  of  American  state  government  is  that 
the  governor  has  no  legislative  functions,  and  from  a  reading 

1  J.  H.  Finley  and  J.  F.  Sanderson,  The  American  Executive  and  Execu- 
tive Methods  (N.  Y.,  1908);  A.  N.  Holcombe,  State  Government  in  the 
United  States  (N.  Y.,  1916),  ch.  x;  and  J.  M.  Mathews,  Principles  of 
American  State  Administration  (N.  Y.,  1917),  ch.  iii. 

2F 


434      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The    • 
governor's 
powers : 
1.    legis- 
lative. 


How  the 
governor 
secures 
his  legis- 
lative 
influence. 


His  in- 
fluence 
as  a 
party 
leader. 


The  spell 
of  his 
influence 
with  in- 
dividual 
legisla- 
tors. 


of  the  various  state  constitutions  one  might  readily  con- 
clude that  this  would  be  true  in  practice  as  well.  These 
constitutions  give  the  governor  no  formal  voice  in  the  mak- 
ing of  laws.  Some  of  them  explicitly  forbid  all  executive 
participation  in  lawmaking.  Nevertheless,  the  governor's 
influence  upon  the  course  of  legislation  is  almost  everywhere 
considerable  and  far  more  extensive  than  any  reasonable 
,  interpretation  of  his  strictly  constitutional  powers  would 
imply.1  This  is  because  of  the  close  relation  which  exists 
in  the  states,  as  in  the  nation,  between  lawmaking  and  the 
party  system.  Members  of  state  legislatures  are  almost 
invariably  elected  on  a  party  basis,  pledged  to  carry  out 
a  programme  of  legislation  set  forth  in  the  platform  of  their 
party.  As  a  rule,  though  of  course  not  always,  the  governor 
is  a  leader  of  the  party  which  controls  a  majority  in  the 
legislature.  When,  therefore,  the  governor  urgently  insists 
that  some  particular  measure  be  passed  or  another  one 
rejected,  he  does  not  speak  primarily  as  the  executive  head 
of  the  state  government  but  as  the  leader  of  his  party  in  the 
state.  His  recommendations  may  be  communicated  to  the 
legislature  formally  by  means  of  official  messages,  or  infor- 
mally by  conferences  with  prominent  members  of  his  own 
party  in  the  legislative  chambers.  The  latter  is  often  the 
more  effective  way. 

Members  of  the  legislature,  moreover,  are  to  some  extent 
under  the  spell  of  a  governor's  influence.  They  are  inter- 
ested in  the  appointments  to  paid  positions  which  the  gov- 
ernor has  power  to  make ;  they  are  interested  in  the  passage 
of  bills  which  will  come  before  him  for  assent  or  veto ;  they 
are  interested  in  appropriations  which  he  may  or  may  not 
recommend.  By  the  strategical  use  of  his  authority  and 
discretion  in  these  matters  a  governor  can,  if  he  so  desires, 
bring  many  members  of  the  legislature  into  sympathy  with 
his  own  legislative  recommendations.  The  governor,  more- 
over, has  ready  access  to  the  ear  of  public  opinion.  He  can 
often  present  his  recommendations  in  such  way  that  they 

1  J.  W.  Garner,  "Executive  Participation  in  Legislation,"  in  Proceedings 
of  the  American  Political  Science  Association,  x,  pp.  176-190  (1914).  See 
also  the  discussion  of  the  same  subject  in  the  Proceedings  of  the  Academy  of 
Political  Science,  v,  pp.  127-140  (1914). 


THE  GOVERNOR  435 

stir  up  a  popular  demand  which  in  its  turn  reacts  upon  the 
legislature.  The  pressure  of  public  opinion  acts  upon  the  ex- 
ecutive and  legislative  branches  of  state  government  alike ; 
but  the  former  usually  secures  the  first  opportunity  to 
sense  it  and  to  act  accordingly.  The  strict  constructionists 
continue  to  urge  the  doctrine  that  the  American  state 
governor  has  no  share  in  the  making  of  laws,  but  even  the 
casual  observer  of  practical  politics  knows  that  this 
doctrine  does  not  accord  with  the  facts.  The  governor's 
legislative  authority  is  not  founded  upon  either  law  or 
logic ;  it  is  not  to  be  discovered  by  a  reading  of  con- 
stitutions or  statutes,  but  rather  by  keeping  an  eye  on 
those  legislators  who  visit  the  governor's  ante-chamber  and 
then  become  his  spokesmen  in  the  committee  rooms  or  on 
the  floor.1 

Nor  is  the  governor's  influence  over  the  course  of  state  The 
legislation  confined  to  positive  channels  only.  Like  the 
President  in  relation  to  Congress  he  also  possesses,  by  express  its  origin 
constitutional  provision,  that  effective  weapon  of  legislative 
obstruction  known  as  the  veto  power  or  the  power  of  with- 
holding his  assent  to  bills  passed  by  the  legislature  and 
thereby  preventing  their  enactment  into  law.  This  veto 
power  now  exists  in  every  state  of  the  Union  except  North 
Carolina.  It  was  not  given  to  the  governor  in  any  of  the 
original  thirteen  state  constitutions  except  those  of  Massa- 
chusetts and  New  Hampshire, .  as  it  seemed  to  savor  of 
executive  despotism.2  But  having  been  adopted  in  the 

1':Some  years  ago,  in  answer  to  inquiries,  fourteen  governors  expressed 
their  opinions  with  reference  to  the  scope  and  importance  of  executive 
influence  upon  state  legislation.  Their  replies  made  it  quite  clear  that, 
whatever  the  constitutional  limitations  upon  executive  influence  might 
be,  the  state  governor  is  everywhere  an  important  factor  in  lawmaking. 
See  John  H.  Finley  and  John  F.  Sanderson,  The  American  Executive  and 
Executive  Methods  (N.  Y.,  1908),  pp.  181-183. 

2  The  framers  of  the  thirteen  original  state  constitutions  were  much 
more  afraid  of  executive  than  of  legislative  tyranny.  This  was,  of  course, 
a  legacy  from  colonial  days  when  the  governor  had  to  carry  out  the  instruc- 
tions which  came  to  him  from  England  and  hence  obtained  on  many 
occasions  a  reputation  for  high-handedness  which  was  not  of  his  own  mak- 
ing. These  original  constitutions  reduced  the  governor's  office  to  a  post 
of  relatively  small  importance,  making  the  legislatures  the  predominant 
arm  of  the  government  in  all  the  states.  As  Madison  expressed  it  during 
the  debates  in  the  federal  convention  of  1787,  "  The  executives  of  the  states 


436      THE  GOVERNMENT  OF  THE  UNITED  STATES 


How  the 
veto 
power  is 
exercised. 


The  power 
to  veto 
parts  of 
measure. 


The 

"pocket 

veto." 


federal  constitution  of  1787  the  veto  ultimately  made  its 
way  into  the  organic  laws  of  all  the  forty-eight  states  but  one. 

In  principle  and  in  practice  the  governor's  veto  power 
and  the  veto  power  of  the  President  are  much  alike.  With 
a  few  minor  exceptions  every  bill  or  resolution  which  passes 
both  Houses  of  the  state  legislature  must  be  presented  to  the 
governor  for  his  signature.  Like  the  President  he  has  three 
options ;  he  may  sign  it,  or  within  the  prescribed  period  send 
it  back  without  his  signature,  or  do  neither.  In  the  first  case 
it  becomes  a  law.  In  the  second  case  it  does  not  become  a 
law  unless  both  houses  of  the  legislature,  by  a  prescribed 
majority  (usually  two-thirds  or  three-fifths),  pass  the  measure 
over  his  veto.  In  the  third  case,  at  the  expiration  of  the 
prescribed  time,  from  three  to  ten  days,  it  becomes  a  law 
without  the  governor's  signature,  provided  the  legislature 
does  not  in  the  meantime  end  its  session,  in  which  case  it  does 
not  become  a  law  but  receives  what  is  commonly  termed  in 
state  as  in  federal  politics  the  "pocket  veto." 

In  many  of  the  states  the  governor  cannot  veto  particular 
clauses  or  sections  of  a  measure,  but  must  sign  or  reject  it  as 
a  whole.  In  the  case  of  appropriation  bills  this  is  a  serious 
drawback  to  the  effective  exercise  of  the  veto  power,  for  a 
governor  is  often  faced  with  the  alternative  of  letting  an 
objectionable  item  of  expenditure  pass  or  of  tying  up  the 
entire  list  of  appropriations.  In  some  states  the  veto  of 
individual  items  is  permitted,  and  this,  it  has  been  found, 
not  only  enhances  the  authority  of  the  governor  in  the  de- 
termination of  the  state's  financial  policy  but  places  upon 
him  a  corresponding  responsibility  for  the  economy  of  his 
administration. 

The  governor's  power  over  lawmaking,  through  the  use 
of  the  veto,  is  greatly  increased  by  the  common  practice  (in 
which  most  state  legislatures  indulge)  of  letting  bills  drag 
along  until  near  the  end  of  the  session.  Then  they  are 
hurried  through  their  final  stages  and  sent  to  the  governor 
in  large  numbers  during  the  last  week  of  the  legislative  term. 
In  such  cases  the  governor  has  very  little  chance  to  examine 

are  in  general  little  more  than  ciphers;  the  legislatures  omnipotent." 
It  is  hardly  necessary  to  remark  that  this  situation  has  been  greatly 
changed  during  the  intervening  hundred  and  thirty  years. 


THE  GOVERNOR,  437 

the  various  measures  carefully,  yet  any  of  them  that  he  does 
not  actually  sign  are  bound  to  be  slaughtered  by  the  "pocket 
veto."  To  ameliorate  this  situation  many  states  have 
provided  that  measures  shall  become  effective  unless  vetoed 
by  the  governor  within  a  specified  period  after  the  legisla- 
ture closes  its  session.1 

Executive  vetoes  have  been  much  more  frequent  in  state  Workings 
than  in  federal  lawmaking.  They  are  much  more  common  in  ^e^e 
some  states  than  in  others,  but  in- all  the  states  together  the  system, 
total  number  of  vetoes  nowadays  exceeds  a  thousand  a  year. 
This  is  due  in  part,  no  doubt,  to  the  large  number  of  measures 
which  come  to  the  governor's  desk  and  are  there  found  to  be 
badly  drawn,  or  unintentionally  in  conflict  with  laws  already 
passed,  or  of  doubtful  constitutionality,  or  defective  in  some 
other  way.  These  shortcomings  give  a  governor  his  oppor- 
tunity. Yet  the  entire  number  of  measures  vetoed  in  whole 
or  in  part  is  but  a  small  fraction  of  the  total  number  which 
comes  to  the  executive  officers  for  approval,  probably  not 
more  than  five  to.  ten  per  cent  on  the  average  for  the  whole 
country.  On  the  other  hand  the  repressive  influence  of  the 
governor  is  not  to  be  accurately  measured  by  merely  counting 
his  actual  vetoes.  A  word  in  advance  from  the  governor's 
office  to  the  effect  that  any  particular  measure,  if  passed, 
will  not  receive  the  executive  signature  is  often  quite  suffi- 
cient to  prevent  its  further  progress  in  the  legislature.  A 
governor's  vetoes  are  in  most  cases  final,  for  it  is  only  in 
exceptional  cases  that  a  two-thirds  vote  of  both  chambers 
can  be  mustered  to  override  them. 

This  means  that  governors  have  obtained,  through  the  How  its 
free  use  of  the  veto,  a  degree  of  influence  over  the  course  of  JJ^reas^d 
legislation  which  they  were  not  originally  intended  to  have,  executive 
The  veto  power  was  given  to  the  executive,  in  the  first  in-  lnfluence- 
stance,  as  a  weapon  of  defence,  as  a  shield  against  possible 
assaults  made  by  the  legislature  upon  executive  indepen- 
dence.    It  was  not  assumed  that  a  governor  would  veto 
measures  passed  by  the  legislature  whenever,  in  his  opinion, 
they  might  seem  to  be  of  doubtful  constitutionality.     The 
determination  of  a  measure's  constitutionality  is  a  judicial 

1  See  J.  A.  Fairlie,  "The  Veto  Power  of  the  State  Governor,"  in  Ameri- 
can Political  Science  Review,  xi,  p.  473  (August,  1917). 


438      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  gov- 
ernor's ex- 
ecutive 
powers : 


1.   The 

appointing 

power. 


function.  Nor  was  it  expected  that  the  possession  of  the 
veto  power  would  make  of  the  governor  a  third  chamber  of 
the  legislature,  ready  to  share  with  the  two  regular  houses 
the  function  of  determining  whether  any  proposal  of  legisla- 
tion is  the  embodiment  of  good  public  policy.  Yet  govern- 
ors have  assumed  both  of  these  roles.  They  have  arrogated 
to  themselves  the  duty  not  only  of  protecting  their  executive 
prerogatives  but  of  safeguarding  the  state  constitution  from 
violation  and  of  sharing  in  the  determination  of  expediency 
as  respects  all  matters  of  legislative  policy. 

The  most  important  gubernatorial  powers  are,  however, 
executive,  not  legislative.  In  the  realm  of  executive  author- 
ity the  law  and  the  facts  coincide.  This  executive  authority 
includes  the  power  of  appointment  and  removal  as  regards 
many  positions  in  the  state  service,  the  power  to  pardon 
offenders  convicted  by  the  state  courts,  various  military 
powers,  the  general  supervision  of  state  administration,  and 
certain  powers  of  a  miscellaneous  nature.1 

The  appointing  power  of  the  governor  is  great,  and  is 
steadily  increasing.  Time  was  when  most  of  the  higher 
state  officials  were  chosen  by  the  legislature,  but  now  very 
few  are  selected  in  that  way.  The  practice  of  choosing  of- 
ficials of  state  administration  by  popular  election  attained 
considerable  vogue  during  the  nineteenth  century  and  still 
has  a  strong  grip  in  many  states ;  but  in  many  others  these 
administrative  posts,  or  most  of  them,  are  filled  by  persons 
whom  the  governor  appoints.2  This  is  particularly  true  of 
boards  which  have  technical  tasks  to  perform,  such  as  pub- 
lic service  commissions.  In  the  exercise  of  his  appointing 
power,  however,  the  governor  is  usually  subject  to  limitations, 
that  is  to  say,  his  appointments  are  not  valid  until  confirmed. 
The  confirming  authority  is  ordinarily  the  upper  chamber 
of  the  state  legislature ;  but  in  exceptional  cases,  as  in  Massa- 
chusetts, it  is  the  governor's  council. 

This  practice  of  subjecting  the  governor's  appointments 
to  confirmation  is  one  that  harks  back  to  the  days  of  im- 

1  J.  M.  Mathews,  Principles  of  American  State  Administration  (N.  Y., 
1917),  ch.  iv. 

2  In  the  case  of  those  heads  of  departments  whose  positions  are  estab- 
lished by  the  constitution,  however,  popular  election  is  still  the  general 
rule. 


THE  GOVERNOR  439 

plicit  confidence  in  the  principle  of  checks  and    balances.  Checks 
Fearing  that  governors  would  abuse  their  authority,   re-  uP°n.the 

.,         T  ,,  ., \         £   appointing 

stramts  were  put  upon  it.  In  many  cases  the  necessity  of  power: 
confirmation  has  proved  a  wholesome  check  upon  governors  <a)  confir- 
who  sought  to  repay  personal  or  partisan  obligations  by  ™ail°u 
giving  to  their  supporters  an  anchorage  upon  the  public  Senate, 
pay-roll.  It  has  availed  at  times  to  prevent  governors  from 
using  their  patronage  as  a  means  of  building  up  political 
machines.  But  just  as  frequently,  on  the  other  hand,  the 
power  of  confirmation  has  been  used  to  balk  a  governor's 
plans  for  improving  state  administration  by  the  appoint- 
ment of  honest  and  capable  officials.  The  confirming  power 
represents  a  bludgeon  which  a  partisan  state  Senate  can  hold 
above  the  governor's  head  in  the  endeavor  to  force  him  to 
withhold  a  prospective  veto  or  to  recommend  expenditures 
in  which  individual  senators  may  be  interested.  Whether 
the'several  states,  taken  as  a  whole,  have  had  more  examples 
of  wholesome  obstruction  or  positive  intimidation,  whether 
the  power  of  confirmation  has  in  the  totality  of  its  exercise 
worked  for  good  or  ill,  is  hard  to  decide.  With  the  right  sort 
of  governor  no  such  check  is  needed ;  with  the  wrong  sort  it 
may  be  moderately  effective,  or  on  the  other  hand  his  inge- 
nuity may  enable  him  to  bargain  his  appointments  through. 
The  outstanding  defect  of  the  present  system  is  that  it 
permits  an  evasion  of  responsibility  for  appointments.  In 
municipal  government  the  power  of  confirmation,  which 
remained  for  many  decades  in  the  hands  of  the  aldermen  or 
the  councillors,  has  been  generally  abolished,  all  responsi- 
bility for  appointments  being  thereby  concentrated  upon 
the  mayor.  The  results  have  been  advantageous. 

The  other  common  check  upon  the  governor's  appointing  (&)  civil 
power  is  the  civil  service  system,  which  exists,  however,  in 
only  a  minority  of  the  states.  The  restrictions  provided  by 
the  civil  service  laws,  in  states  where  such  laws  have  been 
enacted,  do  not  cover  the  heads  of  departments  and  other 
high  officials  of  state  administration.  They  apply  to  subor- 
dinate appointments  only.  Where  there  is  a  civil  service  or 
merit  system  the  governor  does  not  have  discretion  as  regards 
these  minor  positions.  They  are  filled  by  competitive  ex- 
aminations held  under  the  auspices  of  a  civil  service  board 


440      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

principles 

of  the 

civil 

service 

system. 


The  dis- 
crepancy 
between 
its  ideals 
and  its 
actual 
achieve- 
ments. 


or  commission.  These  examinations  are  usually  open  only 
to  residents  of  the  state,  and  the  names  of  those  who  stand 
highest  are  certified  to  the  head  of  the  department  in  which 
the  position  is  to  be  filled. 

The  civil  service  system  in  state  appointments  has  proved 
a  noteworthy  improvement  over  the  traditional  method  of 
distributing  paid  offices  among  the  party  stalwarts  as  a 
reward  for  political  services.  It  has  closed  the  door  to  one 
of  the  most  pernicious  traditions  in  American  political  life, 
that  of  degrading  the  public  service  to  a  plane  of  indolence, 
inefficiency,  and  arrogance  in  order  that  the  obligations  of 
party  leaders  may  be  defrayed  from  the  taxes  of  the  people. 
It  is  a  system  based  upon  the  principle  that  merit  alone 
should  be  the  passport  to  public  as  to  private  employment, 
and  that  political  or  personal  favoritism  should  not  out- 
weigh ability,  character,  and  experience  in  determining  the 
choice  of  the  state's  employees.  With  these  ideals  most 
people  are  nowadays  in  agreement.  Their  difference  of 
opinion  arises  in  connection  with  the  mechanism  to  Be  used 
in  putting  these  sound  principles  into  practice. 

Between  the  ideals  and  the  achievements  of  the  civil 
service  system  there  is,  no  doubt,  a  considerable  disparity. 
With  the  best  of  aims  and  endeavors  the  civil  service 
authorities  in  the  various  states  have  had  to  use  such 
machinery  of  selection  as  they  could  lay  their  hands  upon. 
Written  and  oral  examinations  have  been  their  chief  reliance, 
supplemented  of  course  by  information  secured  in  other  ways 
as  to  the  merits  of  candidates.  But  formal  examinations,  as 
those  who  have  much  to  do  with  them  know,  are  very  fallible 
instruments  for  eliciting  sure  information  concerning  the 
general  merits  of  candidates.  They  are  poor  tests  of  such 
qualities  as  initiative,  industry,  honesty,  tact,  patience, 
resourcefulness,  and  they  are  not  always  dependable  tests 
of  intelligence ;  yet  these  are  qualities  which  spell  success 
in  public  as  in  private  employ.  The  general  tendency 
of  the  civil  service  system,  in  its  actual  workings-out, 
has  been  to  draw  into  the  public  service  a  sluggish  stream 
of  men  and  women  who  have  diligently  prepared  for 
the  examinations  and  who  pass  them  for  that  reason  rather 
than  by  reason  of  their  native  ability.  It  has  not 


THE  GOVERNOR  441 

raised  the  efficiency  of  public  service  to  that  of  private 
employment. 

The  civil  service  system  would  bring  better  and  more  Promo- 
enduring  results  if  its  principles  and  methods  were  carried  tlons' 
further.     Merit  should  determine  not  only  appointments 
but  promotions.     Thus  far,  however,  it  has  had  relatively 
little  to  do  with  the  latter,  and  hence  the  chief  incentive  to 
hard   work,  after  a  man  or  woman  has  entered  the  lower 
ranks  of  the  public  service,  is.  altogether  lacking.     Here 
again,  however,  one  encounters  the  practical  difficulty  of  - 
sorting  out  real  merit  by  any  inflexible  mechanism.     Pro- 
motions continue  to  be  made  at  the  discretion  of  the  governor 
or  the  heads  of  departments. 

With  the  power  of  appointment  goes  the  power  to  suspend  Removals, 
or  to  remove  state  officials.  Authority  to  suspend  an  official 
from  office  appertains  to  governors  in  most  of  the  states, 
but  governors  do  not,  as  a  rule,  have  any  free  power  to  dis- 
miss even  those  officials  whom  they  themselves  appoint. 
Charges  must  usually  be  filed,  hearings  given,  and  in  many 
states  the  concurrence  of  the  upper  chamber  of  the  state 
legislature  is  required.  Here,  again,  the  restriction  has 
often  availed  to  forestall  arbitrary  and  unjust  removals,  but 
quite  as  often  it  has  served  to  keep  in  office  men  of  political 
influence  whose  malfeasance  or  negligence  amply  warranted 
dismissal.  When  officials  are  appointed  under  civil  service 
rules,  moreover,  they  may  be  removed  only  by  compliance 
with  such  formalities  as  the  laws  prescribe.  These  usually 
afford  adequate  protection  against  dismissal  save  for  reasons 
of  actual  misconduct  or  gross  inefficiency. 

The  power  to  pardon  offenders  who  have  been  convicted  2.  The 
in  the  state  courts  is  frequently  one  of  the  governor's  pre- 
rogatives.1  In  England  the  power  of  pardoning  offences  had- 
been  from  earliest  times  a  prerogative  of  the  crown,  and  in 
the  state  constitutions  which  were  framed  immediately  after 
the  Revolution  this  authority  was  vested  in  the  governor 
alone,  or  in  the  governor  and  his  council  where  there  was  a 
council.  In  most  of  the  states  at  the  present  day  the  power 
of  pardoning  as  respects  all  convictions  made  by  state  courts 

1  Bulletin  No.   4   of   the   Massachusetts   Constitutional   Convention, 
entitled  "The  Pardoning  Power"  (Boston,  1917). 


442      THE  GOVERNMENT  OF  THE  UNITED  STATES 

rests  with  the  governor  alone.  Usually,  however,  this  power 
does  not  cover  convictions  arising  from  impeachment  or 
penalties  imposed  for  treason.  In  some  of  the  remaining 
states  the  governor's  power  of  pardon  is  circumscribed  by 
the  necessity  of  acting  in  conjunction  with  a  Board  of 
Pardons  or  with  some  other  body.  In  a  few  states  the  power 
is  given  entirely  to  a  board  of  this  sort,  the  governor  being 
sometimes  a  member  of  it.  One  reason  for  this  is  the  fear 
that  otherwise  the  pardoning  power  might  be  used  by  a 
.  governor  for  personal  or  political  ends.  Some  governors, 
indeed,  have  used  it  too  freely  and  at  times  unwisely.  In 
only  one  state,  Connecticut,  is  the  pardoning  power  vested 
with  the  legislature. 
3.  Mm-  The  military  powers  of  the  state  governor  are  not  as 

powers  extensive  as  they  used  to  be.  The  governor  is  nominally 
the  commander-in-chief  of  the  state  militia  or  national 
guard.  His  functions,  however,  are  determined  by  law,  and 
for  the  most  part  they  are  actually  performed  by  an  adjutant- 
general  or  some  similar  officer.  As  commander-in-chief  of 
the  militia  the  governor  may  appoint  officers  unless  the 
constitution  directs  differently,  or  the  legislature  makes 
some  other  provision,  as  it  often  does.  Each  state  has  a 
body  of  laws  relating  to  the  organization  of  its  militia,  and 
these  laws,  like  all  other  laws,  are  for  the  governor  to  carry  out 
according  to  their  tenor.  When  the  state  militia  is  mustered 
into  the  national  service,  the  governor  ceases  to  have  any- 
thing to  do  with  it.  Usually  the  state  constitution  and  laws 
authorize  the  governor  to  call  out  the  militia  in  time  of  riot 
or  other  civil  disorder.  This  may  be  and  commonly  is  done 
on  the  request  of  the  mayor  or  other  executive  authority  of 
the  municipality  in  which  the  disturbance  has  arisen,  but 
governors  as  a  rule  have  the  right  to  act  upon  their  own 
initiative  as  well.  When  the  aid  of  federal  troops  is  required 
by  any  state  to  quell  internal  violence,  the  governor  calls 
upon  the  President  of  the  United  States  for  this  assistance, 
provided  the  state  legislature  is  not  in  session.  If  it  be  in 
session,  the  legislature  by  resolution  makes  the  request. 

The  governor  has  become  by  tradition  the  recognized 
medium  of  official  intercourse  between  his  own  state  and  the 
federal  authorities.  While  no  specific  constitutional  obli- 


THE  GOVERNOR  443 

gations  are  imposed  upon  the  chief  state  executives  in  the  4.  Func- 
way  of  assisting  the  national  government  to  perform  any  of  latioVt 
its  functions,  the  practice  is  to  call  upon  them  for  such  help  federal 
when  occasions  arise.     During  the  Civil  War  the  President  govern- 

•  ment  and 

called  upon  the  northern  governors  to  assist  in  the  calling  toother 
out  and  organization  of  the  Union  forces,  and  they  promptly  states< 
responded.  In  the  work  of  raising  the  national  army  during 
the  European  War  the  governors  were  asked  to  recommend 
persons  for  service  upon  the  various  draft  boards,  and  in  all 
cases  complied  readily.  The  governor  is  also  the  channel 
of  official  communication  between  his  own  state  and  other 
states.  His  functions  in  relation  to  the  extradition  of 
fugitives  from  justice  have  been  already  referred  to.1  When 
one  state  desires  to  sue  another  in  the  Supreme  Court,  a 
statute  authorizing  the  suit  is  usually  passed  by  the  legis- 
lature; but  the  governor  is  regarded  as  having  authority, 
on  his  own  initiative,  to  institute  any  such  suit  for  the  pro- 
tection of  his  state. 

Finally,  the  governor  is  charged  with  a  general  super-  5.  The 
vision  over  the  enforcement  of  the  laws  and  the  conduct  of  general 
the  state's  administrative  affairs.     Just  how  much  actual  sight  of 
authority  he  can  exercise  in  this  capacity  depends  in  part  ^a^inis 
upon  the  personality  of  the  governor  and  in  part  upon  the  tratkm. 
nature  of  his  legal  relations  with  other  state  officials.     A 
dominating  personality  in  the  governor's  chair,  if  he  have 
public  opinion  as  an  ally,  will  often  compel  all  other  state 
officials  to  help  carry  out  his  policy,  no  matter  how  inde- 
pendent of  his  actual  control  they  may  be.     Yet  the  gov- 
ernor's executive  supremacy  is  in  most  states  far  from  being 
so  complete  as  is  that  of  the  President  in  national  affairs. 
It  is  here,  more  than  at  any  other  point,  that  the  analogy 
between   the  two  positions  fails  to  hold.     The  President  Functions 
appoints  all  the  heads  of  federal  departments  and  can  re-  ^^ 
move  them  at  will.     His  control  over  them  is  unquestioned  compared 
and  his  responsibility  for  their  actions  is  not  to  be  evaded.  ^fitt£ethose 
But  the  heads  of  state  departments  are  not  in  most  cases  President. 
chosen  by  the  governor  and  cannot  be  removed  from  office 
by  him.     His  influence  over  their  actions  can  only  be  indirect 
and  imperfect,  nor  can  entire  responsibility  for  the  conduct 

1  Above,  p.  403. 


444      THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  state  administration  be  properly  allotted  to  him,  although 
public  opinion  too  often  puts  the  blame  upon  him  when 
things  go  wrong.  Heads  of  state  departments  not  infre- 
quently set  themselves  out  to  thwart  the  governor's  plans ; 
they  intrigue  with  the  legislature  against  him  and  at  times 
openly  defy  his  instructions.  Nothing  of  that  sort  is  en- 
countered at  Washington. 

Changes  Surveying  the  office  of  governor  in  its  development  and 

prestige        present  status,  one  may  say  that  it  has  considerably  increased 
and  its  powers  but  not  its  prestige  in  the  last  century  and  a 

ofThe8          quarter.     In  the  early  days  of  the  Union  the  post  was  one 
office  of  great  dignity  and  honor,  not  outranked  in  the  public  mind 

the"118          by  membership  in  the  federal  cabinet  or  in  the  national 
nine-  Senate.     Yet  the  influence  of  the  governor  upon  legislation, 

century.  his  patronage  in, appointments,  and  his  power  as  a  party 
leader  were  all  of  them  far  less  extensive  at  that  time  than 
they  are  to-day.  During  the  nineteenth  century  the  actual 
powers  of  the  state  governor  have  everywhere  been  steadily 
increased,  but  this  has  not,  curiously  enough,  enabled  the 
glory  and  dignity  of  the  office  to  be  maintained.  On  the 
contrary,  any  governor  would  nowadays  regard  election  to 
the  national  Senate  or  appointment  to  the  federal  cabinet 
as  a  real  promotion.  Indeed  a  term  of  service  in  the  gov- 
ernor's chair  has  come  to  be  regarded  as  a  prelude  to  the 
senatorial  aspirations.  The  status  of  a  governor  in  the 
public  imagination  is  not  now  much  higher  than  that  of  the 
mayor  of  a  large  city. 

The  office  of  governor  is  a  difficult  one  to  fill  with  marked 
success.  Men  who  occupy  the  post  are  expected  by  public 
opinion  to  achieve  results  which,  owing  to  their  restricted 
control  over  the  other  officials  of  state  administration,  are 
entirely  beyond  their  powers.  Few  governors  of  recent 
years  have  come  out  of  office  richer  in  reputation  than 
when  they  went  in.  Occupancy  of  a  governor's  chair, 
nevertheless,  has  sometimes  placed  men  in  line  for  the  presi- 
dency. Rutherford  B.  Hayes  of  Ohio,  Grover  Cleveland 
and  Theodore  Roosevelt  of  New  York,  and  Woodrow  Wilson 
of  New  Jersey  afford  four  notable  examples  of  this  during  the 
past  forty  years. 


CHAPTER  XXXI 

STATE  ADMINISTRATION 

AT  the  first  establishment  of  state  government  in  America  The 
there  were,  in  addition  to  the  governor  and  the  lieutenant- 
governor,  a  small  number  of  state  administrative  officials,  trative 
notably  a  secretary,  a  treasurer,  and  an  attorney-general*  officers- 
Frequently  these  officials,  with  some  additional  elective 
members,  formed  a  governor's  council,  an  institution  which 
still  survives  in  a  few  states  of  the  Union.1  The  officers  had 
the  general  duties  which  their  titles  indicate.  The  secretary 
kept  the  official  records,  the  treasurer  served  as  custodian  of 
the  public  funds,  and  the  attorney-general  prosecuted  suits 
in  the  name  of  the  state.  Almost  invariably  they  were 
elected  by  the  people  and  hence  were  not  accountable  to  the 
governor. 

By  and  by  other  officials  were  added  to  the  list  and  chosen  Their 
in  the  same  way,  an  auditor  or  comptroller,  a  superintendent  J^cm  ? 
of  education,  a  commissioner  of  labor,  and  so  on,  each  at  the  recent 
head  of  his  respective  department.     Then,  likewise,  with  years- 
growth  in  population  and  with  the  consequent  development 
of  both  social  and  economic  problems  still  other  adminis- 
trative  departments   were   established,    sometimes  headed 
by  a  single  state  official,  sometimes  by  a  board  of  three,  five, 
or  more  members.     This  development,  which  has  led  to  an 
almost    complete    disintegration    of    state    administrative 
functions,  is  largely  the  product  of  the  last  thirty  or  forty 
years.     In  all  the  larger  states  these  officials  and  boards  have 
multiplied  to  formidable  proportions,  and  in  some  of  them  the 
total  number  of  state  administrative  departments  has  now 
reached  sixty,  eighty,  and  even  one  hundred. 

1  In  Massachusetts,  Maine,  New  Hampshire,  and  North  Carolina. 

445 


446      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Reasons 
for  this 
develop- 
ment: 
1.  the 
stricter 
regulation 
of  business. 


Why  regu- 
lation 
increases 
adminis- 
trative 
machinery. 


The  changing  relation  between  government  and  business 
has  been  in  the  main  responsible  for  this  elaboration  of 
administrative  machinery.1  The  era  of  laissez-faire,  of 
official  non-interference,  has  been  rapidly  passing  away. 
Banks,  other  financial  institutions,  insurance  companies, 
railroad,  express,  telegraph,  telephone,  lighting,  street  rail- 
way, and  other  public  service  corporations  have  been  brought 
within  the  provisions  of  regulatory  laws.  Laws  relating  to 
the  conditions  and  hours  of  labor,  especially  for  women  and 
children,  laws  relating  to  sanitation  in  industrial  establish- 
ments, laws  providing  for  workmen's  compensation,  for  mini- 
mum wage  scales  in  certain  employments,  for  the  adjustment 
of  labor  disputes,  for  the  care  of  immigrant  workers,  for  the 
protection  of  wage-earners  against  loan-office  extortion,  — 
all  this  legislation  has  been  crowding  its  way  to  a  place  upon 
the  statute  books  during  the  past  generation.  But  the  mere 
enactment  of  these  regulatory  statutes  would  avail  little,  and 
might  readily  work  more  harm  than  good  if  their  enforce- 
ment were  not  committed  to  some  administrative  authority 
charged  with  that  function  and  empowered  also  to  provide 
that  measure  of  flexibility  which  all  regulatory  laws  ought 
to  have.  Hence  the  creation  of  boards,  commissions,  and 
departments. 

These  boards  serve  a  dual  purpose.  First,  they  see  to  it 
that  the  detailed  and  often  intricate  provisions  of  present- 
day  regulatory  laws  are  carried  into  effect ;  they  receive 
complaints  and  adjust  them;  they  prosecute  violations. 
Second,  they  provide  the  legislature,  when  it  undertakes  any 
new  step  in  the  way  of  regulating  business,  with  a  repository 
of  administrative  power.  It  is  impossible  to  incorporate  in 
any  law  a  specific  provision  for  every  case  that  may  arise. 
Far  better,  it  has  been  found  by  experience,  is  the  plan  of 
stating  the  general  principles  with  as  much  detail  as  is  con- 
venient, and  leaving  their  specific  application  to  men  ap- 
pointed for  the  purpose.  In  a  word,  the  strict  insistence 
upon  a  government  of  laws  alone  has  given  way  under 

1  The  best  book  on  this  subject  is  J.  M.  Mathews,  Principles  of  American 
State  Administration  (N.  Y.,  1917).  The  legal  aspects  of  state  adminis- 
tration are  fully  discussed  in  F.  J.  Goodnow,  Principles  of  the  Adminis- 
trative Law  of  the  United  States  (N.  Y.,  1905). 


STATE  ADMINISTRATION  447 

the  pressure  placed  upon  the  state  authorities  by  the 
kaleidoscopic  needs  of  modern  business.  The  human  touch 
is  needed  to  make  regulations  both  effective  and  just. 

It  is  not  in  the  sphere  of  business  alone  that  the  regulating  2.  the 
arm  of  the  state  has  been  growing  more  energetic  with  the  e^nsion 

.  mi  ^     StB-t/G 

lapse  of  time.  1  he  state  of  to-day  is  trying  to  give,  and  is  service  in 
giving,  a  far  greater  modicum  of  service  in  all  departments  other  fields< 
of  the  common  life  than  ever  before.  Care  for  the  public 
safety,  for  the  health  of  the  community,  for  the  poor,  the 
handicapped,  and  the  defective,  for  public  comfort  and 
recreation,  for  the  preservation  of  natural  resources  —  all 
these  have  added  to  the  volume  of  the  law  and  to  the  in- 
tricacy of  the  administrative  mechanism.  One  need  only 
glance  over  the  list  of  departments,  boards,  and  commissions 
in  any  state  to  have  well  impressed  upon  his  mind  the  com- 
prehensiveness, variety,  and  importance  of  the  functions 
which  the  American  commonwealth  now  endeavors  to  per- 
form for  its  people. 

These  various  departments  may  perhaps  best  be  classified  Present 
by  grouping  them  according  to  the  functions  which  they  ^ 
share  in  exercising.     First,  there  are  various  officials  and  state 
boards  having  to  do  with  general  administration.     Within 
the  category  of  departments  which,  along  with  the  governor, 
share  in  the  work  of  general  state  administration  are  those  i.  General 
of  the  secretary  of  state,  the  treasurer,  the  auditor,  the  *rda™^s~ 
attorney-general,  the  elections  board,  and  the  civil  service  depart- 
commission,  each  of  which  departments  performs  functions  ments- 
designated  in  part  only  by  its  title.     The  secretary  of  state  Their 
not  only  keeps  the  official  records,  but  is  intrusted  with  many  functions- 
other  functions  such  as  the  distribution  of  public  documents, 
the  custody  of  the  state  seal,  and  sometimes  with  various 
duties  relating  to  elections.     The  treasurer  is  not  only  the 
custodian  of  the  revenues,  but  pays  out  the  money  when 
called  upon  to  do  so  by  the  proper  authority.     He  also  Issues 
bonds   when   the   state   borrows    funds.      The   auditor   or 
comptroller   must   approve  every  bill  before  the  treasurer 
will  pay  it ;  he  also  checks  up  the  treasurer's   books   and 
reports  regularly  to  the  legislature.     The  attorney-general 
is  the  chief  prosecuting  officer  of  the  state,  but  he  also  acts 
as  legal   adviser  to  the  governor   and   to   all  other  state 


448      THE  GOVERNMENT  OF  THE  UNITED  STATES 


2.   Public 
health 
and  sani- 
tation. 


3.    The  reg- 
ulation 
of  public 
utilities. 


officials.  In  some  states  he  has  a  certain  degree  of  super- 
vision over  the  work  of  district  prosecuting  attorneys. 
Election  boards,  where  they  exist,  control  the  machinery  of 
polling,  but  usually  do  this  through  local  election  officials. 
When  there  is  a  civil  service  commission,  it  supervises  the 
administration  of  the  laws  relating  to  the  merit  system  of 
appointments,  holds  the  competitive  examinations,  and 
protects  the  public  service  against  the  evils  of  patronage. 
This  does  not  exhaust  the  list,  moreover,  of  departments 
which  have  to  do  with  general  administrative  matters.  In 
many  states  there  are  other  officials  and  boards  of  this 
character. 

A  second  group  of  state  departments  includes  all  those 
which  have  to  do  with  sanitation  and  public  health  pro- 
tection. Nearly  every  state  in  the  Union  has  a  department 
of  health  and  sometimes  other  officials  or  boards  whose  duty 
it  is  to  carry  out  the  provisions  of  laws  relating  to  the  col- 
lection of  vital  statistics,  the  prevention  of  disease,  and  the 
general  protection  of  the  public  against  epidemics.  Usually 
this  department  has  some  degree  of  supervision  over  the 
work  of  local  health  boards  or  officials.  The  laws  and  regu- 
lations relating  to  the  protection  of  the  public  health  have 
become  numerous  and  complicated  in  all  the  more  populous 
states ;  they  cover  a  host  of  matters,  such  as  the  registration 
of  births  and  deaths,  the  reporting  of  contagious  diseases, 
disinfection,  and  quarantine,  the  disposal  of  sewage  and 
garbage,  the  protection  of  water  supplies,  the  inspection  of 
food,  especially  of  meats  and  milk,  the  abatement  of  nui- 
sances, and  the  amelioration  of  unsanitary  conditions  in 
shops  and  dwellings.  The  drift  towards  central  supervi- 
sion in  public  health  administration  has  been  strong  during 
recent  years.  Individual  communities  are  no  longer  left  to 
make  and  apply  their  own  capricious  regulations  in  this  vital 
field. 

For  many  decades  it  was  the  policy  of  the  states  to  let 
public  service  companies  of  all  sorts  go  unregulated  except 
in  so  far  as  general  regulations  could  be  prescribed  by  law. 
Administrative  machinery  for  enforcing  even  these  general 
regulations  was  entirely  lacking  save  that  in  a  few  cases  the 
work  was  intrusted  in  a  perfunctory  way  to  the  secretary 


STATE  ADMINISTRATION  449 

of  state.  The  result  was  that  many  large  corporations, 
particularly  those  engaged  in  furnishing  gas,  electricity,  or 
transportation,  abused  their  freedom  from  official  regulation, 
and  by  various  extortions  or  discriminations  eventually  forced 
the  states  to  come  upon  them  with  an  iron  hand.  Hence 
there  has  been,  during  the  last  thirty  years,  a  marked  growth 
in  the  number  of  state  officials  and  boards  having  to  do 
with  corporate  and  public  utility  supervision.  Within  this 
category  are  found  commissioners  of  corporations,  insurance 
commissioners,  railroad  commissioners,  and  public  service 
commissions.  In  practically  all  the  states  regulating  bodies 
of  this  sort  now  exist.  Their  functions  are  so  manifold  that 
anything  akin  to  a  complete  summary  of  them  would  be 
impossible  here.  Some  of  these  boards  are  endowed  with 
large  powers  to  hear  complaints  and  adjust  them,  to  make 
rules  on  their  own  initiative,  to  pass  upon  the  reasonability 
of  rates  and  conditions  of  service,  to  compel  the  submission 
of  financial  reports,  and  to  enforce  compliance  with  their 
orders.  Others  have  varying  degrees  of  lesser  authority, 
and  some  have  powers  of  an  investigating  and  advisory  char- 
acter only.  Everywhere,  however,  the  powers  of  such  ad- 
ministrative officials  and  boards  are  expanding  and  becom- 
ing yearly  more  effective.  Their  work  constitutes  a  highly 
important  phase  of  state  government  and  plays  a  consider- 
able part  in  the  interaction  of  state  politics. 

Two  branches  of  corporate  activity  which  have  become  4.  The  reg- 
subject  to  increasingly  strict  supervision  in  recent  years  are  ^a^ 
banking  and  insurance.     To  insure  sound  financial  methods  and 
in  both  these  fields  of  business  the  various  state  legislatures 
have  passed  elaborate  laws,  and  to  insure  that  these  laws 
shall  be  strictly  carried  into  effect  many  of  them  have  es- 
tablished departments  of  banking  and   insurance.     These 
departments    are   in    charge    of    commissioners   who    have 
power  to  examine  the  books  of  all  insurance  companies  and 
banks  which  do  business  under  state  charters,  to  audit  their 
accounts,  to  make  sure  that  their  investments  are  in  legal  se- 
curities, to  insist  upon  adequate  allowances  for  depreciation, 
and  in  general  to  insist  upon  conservative  financial  manage- 
ment. 

During  the  last  few  years  some  of  the  states  have  been 

2G 


insurance. 


450      THE  GOVERNMENT  OF  THE  UNITED  STATES 


5.   The  reg- 
ulation of 
industrial 
and 

mercantile 
affairs. 


extending  their  supervisory  activities  to  the  business  of  selling 
bonds  and  shares  as  well  as  to  banking  and  insurance.  The 
rules  of  supervision  are  embodied  in  the  so-called  "blue-sky 
laws"  and  usually  provide  that  no  stocks  or  bonds  may  be 
offered  for  sale  to  the  public  until  adequate  information 
concerning  the  tangible  assets  behind  them  has  been  laid 
before  the  bank  commissioner  and  a  permit  obtained  from 
him.1  The  issuing  of  this  permit  does  not  mean  that  the 
bonds  or  stock  of  a  corporation  are  recommended  to  the 
people  for  investment  or  that  the  state  vouches  for  the 
solvency  of  the  companies  concerned.  It  is  merely  an 
indication  that  the  flotations  have  been  found  to  be  non- 
fraudulent. 

More  recent  than  the  development  of  state  supervision 
over  public  utilities,  banks,  and  insurance  corporations  is  the 
growth  of  state  regulations  as  applied  to  ordinary  industry 
and  trade.  Twenty  years  ago  there  was  little  or  none  of 
this  ;  to-day  there  is  a  great  deal,  and  it  is  rapidly  increasing. 
It  is  an  indication  of  the  transition  from  an  individualist  to 
a  social  viewpoint  in  the  attitude  of  public  authority  to- 
ward private  business  :  a  transition  which  is  not  peculiar  to 
America  alone.  Old  doctrines  of  strict  non-interference  have 
been  jettisoned ;  the  state  no  longer  concedes  the  right  of 
the  manufacturer  or  the  merchant  to  do  as  he  pleases  in  the 
conduct  of  his  own  business,  particularly  as  regards  the  hours 
and  conditions  of  labor.  Concerning  the*  justice  and  expe- 
diency of  this  growing  official  intervention  in  the  affairs  of 
private  business  there  are  widely  divergent  opinions ;  but 
as  to  the  fact  that  the  limits  of  state  interference  are  being 
rapidly  broadened  there  can  be  no  dispute.  State  com- 
missioners and  boards  with  functions  in  this  new  domain  of 
regulation  are  springing  into  existence  all  over  the  country. 
Most  conspicuous  among  them  are  commissioners  of  labor 
or  labor  boards  whose  duty  it  is  to  investigate  industrial 
conditions,  to  enforce  the  laws  relating  to  the  employment 
of  women  and  children,  to  see  that  factories  are  regularly 

1  The  term  originated  in  Kansas,  where  the  first  law  of  this  sort  was 
enacted  in  1911.  The  implication  was  that  many  mining,  gas,  oil,  and 
land  companies  were  issuing  bonds  and  shares  upon  assets  no  more  tangible 
than  the  blue  sky. 


STATE  ADMINISTRATION  451 

inspected  as  to  their  sanitary  arrangements  and  their  proper 
equipment  with  safety  devices,  to  eliminate  the  evils  of 
sweatshop  production,  and  in  many  cases  to  mediate  in 
disputes  between  employers  and  employees.  In  a  few  states 
this  last  named  function  is  intrusted  to  a  special  state  board 
of  arbitration  or  conciliation.  Provision  for  the  compulsory 
arbitration  of  labor  controversies  does  not  yet  exist,  however, 
in  any  of  the  states. 

The  passing  of  workmen's  compensation  laws  in  many  Workmen's 
states,  moreover,  has  necessitated  the  establishment  of  g°J^a~ 
boards  for  the  detailed  administration  of  these  statutes,  laws  and 
usually  called  industrial  accident  commissions  or  work- 
men's  compensation  boards.  The  principle  at  the  basis  of  tion. 
these  compensation  laws  is  that  when  an  employee  is  injured 
in  the  course  of  his  work,  from  whatever  cause,  the  burden 
should  not  be  placed  wholly  upon  himself,  or  upon  his 
family,  or  even  upon  the  employer ;  it  should  be  included 
in  the  cost  of  production  and  thus  borne  by  the  entire  con- 
suming public.1  Employers  are  therefore  either  compelled 
outright,  or  allowed  under  conditions  which  are  almost 
compulsory,  to  insure  their  workmen  against  the  industrial 
accidents  which  inevitably  occur  in  every  occupation. 
Presumably  they  set  down  the  cost  of  this  insurance  as  one 
of  their  regular  expense  items,  like  taxes  or  fire  insurance  or 
the  replacement  of  machinery.  It  is  the  function  of  the 
workmen's  compensation  board  to  supervise  the  working 
out  of  this  general  policy,  to  determine  in  the  first  instance 
all  disputed  questions  between  the  insurer  and  the  injured 
workman,  and  to  make  a  prudent  disposition  of  the  com- 
pensation awarded. 

The  constitutionality  of  workmen's  compensation  laws,  Their  con- 
in  that  they  virtually  require  an  employer  to  insure  his 
employees  against  the  results  of  their  own  negligence,  has 
been  attacked  in  the  courts.  In  a  famous  decision,  rendered 
in  1913,  the  New  York  Court  of  Appeals  declared  that  this 
requirement  constituted  "a  deprivation  of  liberty  and 

1  The  common  law  gives  the  workman  redress  only  when  the  accident 
is  due  to  the  fault  or  negligence  of  his  employer.  It  gives  no  redress 
when  the  injury  can  be  shown  to  be  due  to  his  own  negligence  or  to  the 
negligence  of  a  fellow-workman. 


452      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Minimum 

wage 

laws. 


Practical 
difficulties 
connected 
with  their 
adminis- 
tration. 


property  under  the  federal  and  state  constitutions"  not 
justifiable  as  a  reasonable  exercise  of  the  police  power.1 
This  decision  drew  forth  much  popular  criticism,  and  an 
amendment  was  accordingly  added  to  the  New  York  con- 
stitution expressly  permitting  the  legislature  to  enact  a 
compulsory  compensation  law.  In  other  states  the  con- 
stitutionality of  such  legislation  is  now  pretty  well  estab- 
lished. 

Minimum  wage  laws  have  also  been  passed  in  some  states, 
and  such  action  usually  adds  another  to  the  list  of  state 
commissions.  The  function  of  this  department  is  to  in- 
vestigate the  rates  of  wages  paid  to  women  and  minors  in 
factories  or  stores  and  to  recommend,  in  some  cases  to 
compel,  the  payment  of  a  minimum  weekly  wage.  The 
doctrine  at  the  basis  of  this  system  is  that  society  as  a  whole 
cannot  safely  or  economically  permit  large  bodies  of  women 
and  children  to  be  employed  at  rates  which  are  well  below 
the  point  of  decent  subsistence;  if  such  conditions  are 
tolerated,  the  ultimate  cost  to  the  community  in  crime, 
poverty,  disease,  and  immorality  will  be  high.  To  permit 
such  a  situation,  it  is  urged,  is  to  allow  grasping  employers 
the  privilege  of  thrusting  upon  society  as  a  whole  a  burden 
which  their  own  expense  budgets  ought  to  bear.  Where 
women  and  children  are  overworked  and  underpaid  (and 
by  the  same  tol$:en,  underfed),  the  community  as  a  whole 
will  ultimately  suffer.  That  is  an  inexorable  law  of  social 
evolution.  Better  it  is,  therefore,  that  the  community 
should  pay  its  way  year  by  year  in  higher  prices  for  the  goods 
which  women  and  children  make,  than  that  a  social  canker 
should  be  tolerated  in  the  name  either  of  higher  business 
profits  or  of  lower  living  costs. 

In  their  actual  application,  however,  minimum  wage  laws 
are  not  without  objectionable  features.  Even-handed  justice 
to  both  the  employer  and  the  wage-earner  is  doubly  essential 
in  this  field  of  administration,  yet  it  is  in  practice  difficult 
to  secure  a  board  of  men  or  women  who  will  relegate  their 
own  personal  sympathies  to  the  background  and  give  no 
advantage  to  either  side.  Too  often  the  doctrine  that  the 
administration  of  a  law  should  be  placed  in  sympathetic 
1  Ives  vs.  South  Buffalo  Railway  Co.,  201  N.  Y.  271. 


STATE  ADMINISTRATION  453 

hands  has  resulted  in  the  establishment  of  boards  whose 
members  assume  the  r61e  of  crusaders  with  a  mission  not 
merely  to'  protect  the  weak  against  industrial  injustice  but 
to  compel  the  general  readjustment  of  wage  scales.  It  is 
to  be  remembered,  moreover,  that  under  the  conditions  of 
to-day,  the  family  rather  than  the  individual  is  the  unit 
which  should  be  fairly  viewed  in  determining  whether  income 
is  below  the  subsistence  point.  When  a  minimum  wage  is 
fixed  for  certain  industries  in  one^  state  and  no  such  action 
has  been  taken  in  other  states,  again,  the  cost  of  production 
is  likely  to  be  so  increased  in  the  former  that  its  products 
are  at  a  disadvantage  in  competition  with  those  of  the  latter. 
These  various  objections,  however,  are  not  fundamental. 

Programmes  of  social  insurance  which  are  now  under  dis-  The 
cussion  in  various  states  will  inevitably  require,  if  adopted 
in  whole  or  in  part,  the  establishment  of  additional  admin*-  of  social 
istrative  departments.  Proposals  for  health  insurance,  old-  insurance- 
age  pensions,  and  for  insurance  against  unemployment  are 
now  being  considered  with  varying  degrees  of  seriousness, 
and  the  time  is  not  distant  when  some  or  all  of  them  will  be 
carried  into  effect.  The  principle  upon  which  these  pro- 
posals rest  is  the  one  already  indicated,  namely,  that  society 
should  take  better  care  of  its  workers  by  protecting  them, 
at  the  cost  of  the  whole  community,  against  the  inevitable 
vicissitudes  of  modern  economic  life.  The  individualist 
policy  in  industry  puts  upon  the  worker  the  necessity  of 
protecting  himself  against  the  hardships  which  result  from 
overwork,  underpayment,  accident,  sickness,  and  old  age. 
The  worker's  failure  to  do  this  adequately  has  not  only 
impaired  the  efficiency  of  industry,  but  has  put  a  huge  burden 
on  society  in  the  end.  The  contention  is  that  the  state 
should  take  over  the  responsibility  for  this  protection,  reliev- 
ing the  community  from  the  ultimate  cost  by  making  it  pay 
its  way  as  it  goes.  Many  practical  difficulties  are  sure  to 
arise,  however,  in  the  application  of  this  principle. 

The  problem  of  the  poor  is  still  with  us,  which  means  that  6.  The 


every  state  has  a  department  under  some  name  or  other 
assigned  to  their  interests.     Commonly  it  is  called  the  state  charities 
board  of  charities.     As  a  rule,  the  state  does  not  directly 
undertake  the  relief  of  poverty,  but  intrusts  this  function 


454      THE  GOVERNMENT  OF  THE  UNITED  STATES 

to  counties,  cities,  towns  or  villages.  The  duty  of  the 
state  department  of  charities  is  to  supervise  and  in  some 
measure  to  coordinate  the  work  of  those  local  poor-relief 
authorities.  Likewise  this  department  may  have  oversight 
of  the  institutions  maintained  for  the  care  or  instruction 
of  the  insane,  the  blind,  the  deaf  and  dumb,  or  the  handi- 
capped in  other  ways,  or  this  work  may  be  intrusted  to 
separate  authorities.  Preferably  it  is  handled  separately. 
The  general  supervision  of  state  prisons  and  reformatories 
is  also  a  function  which  requires  a  department  of  its  own ;  it 
may  be  headed  by  a  single  prison'commissioner  or  it  may  be 
intrusted  to  a  board.  Both  in  charitable  and  correctional 
administration  the  drift  is  toward  a  more  humane  and 
enlightened  application  of  the  laws.  The  decentralization 
of  administrative  machinery  represents  in  part  an  endeavor 
to  meet  demands  in  that  direction. 

7.  The  Every  state  possesses  valuable  assets  in  land,  roads,  and 

viSon  of  buildings ;  some  of  them  have  also  harbors,  forests,  mines, 
public  and  fisheries.  Various  departments  are  given  supervisory 
anTnaturai  func^ons  m  relation  to  these  natural  resources.  Among  the 
resources,  several  states  there  is  the  greatest  variation  in  the  names 
and  the  duties  of  the  commissioners  or  boards  which  have 
to  do  with  all  such  matters.  Massachusetts,  for  example, 
has  a  board  of  agriculture,  a  department  of  animal  industry, 
a  state  forest  commission,  a  commission  on  fisheries  and 
game,  a  commission  on  harbors  and  public  lands,  and  a 
highway  commission,  or  six  boards  in  all.  Throughout  the 
greater  part  of  the  nineteenth  century  the  natural  resources 
of  the  country  seemed  so  inexhaustible  that  they  were 
allowed  to  be  wasted  ruthlessly  for  the  profit  of  individuals 
but  to  the  ultimate  detriment  of  the  whole  people.  Of 
I  late,  however,  conservation  has  come  to  be  looked  upon  as 
not  only  desirable  but  necessary.  This  policy,  as  applied 
to  forests,  fish,  and  game,  has  directed  itself  to  the  work  not 
only  of  protection  but  of  restoration.  In  the  case  of  harbors, 
lands,  waterways,  roads,  the  problem  has  been  that  of  im- 
proving natural  resources  and  turning  them  to  better  account. 
The  encouragement  of  agriculture  in  its  various  branches 
has  also  obtained  greater  attention  from  the  states  as  well 
as  from  the  nation  during  recent  years. 


STATE  ADMINISTRATION  455 

The  department  of  education  is  almost  everywhere  one  8.  The 
of  the  most  important  among  agencies  of  state  administra-  ^Jonof 
tion.  It  was  not  always  so.  In  earlier  days  education  was  public 
left  almost  wholly  to  the  cities,  towns,  and  rural  areas  to  be  educatlon- 
regulated  by  local  school  boards  according  to  their  own  ideas 
of  educational  efficiency.  Even  yet  the  local  school  board 
is  in  immediate  control  and  in  many  cases  its  discretion  is 
still  unrestricted ;  but  steadily  the  state  is  everywhere  taking 
over  a  coordinating  and  supervising  jurisdiction.  Every 
state  to-day  has  a  department  of  education  or  of  public 
instruction  under  an  executive  head,  commonly  called  the 
superintendent  of  education  or  instruction.  Many  of  them 
have  state  boards  of  education  as  well,  and  some  have  spe- 
cial authorities  for  the  supervision  of  the  state  university  or 
for  the  other  public  institutions  of  higher  education.  The 
functions  of  an  education  department  vary  with  the  degree 
of  centralized  control  which  the  state  authorities  have 
assumed.  In  no  two  states  are  they  alike.  In  some  the  de- 
partment outlines  the  programme  of  school  studies,  chooses 
the  text-books,  apportions  state  funds  to  local  schools, 
prescribes  the  qualifications  of  teachers,  appoints  school 
superintendents  and  settles  nearly  all  the  details  of  educa- 
tional policy ;  in  others  it  has  much  more  limited  powers ; 
and  in  others,  again,  its  functions  are  little  more  than 
advisory.  On  the  whole,  however,  the  tide  has  set  towards 
centralization,  towards  giving  the  state  departments  more 
power  and  leaving  less  discretion  to  the  local  school  boards. 

The  laws  relating  to  the  assessment  of  property  for  taxa-  9.  Assess- 
tion  and  to  the  methods  of  taxing  this  property  have  every- 
where  become  so  involved  and  technical  that  new  ad- 
ministrative agencies  for  interpreting  and  applying  their 
provisions  have  had  to  be  created.  State  boards  of  assess- 
ment or  of  equalization,  state  tax  commissioners,  and  various 
allied  authorities  now  figure  upon  the  list  of  departments  in 
many  of  the  states.  There  was  a  time  when  virtually  com- 
plete dependence  for  public  revenue  was  placed  upon  prop- 
erty taxes.  Such  taxes  were  easy  to  assess  and  when 
imposed  could  not  be  evaded.  But  with  the  increase  of 
"intangible"  property  in  its  varied  forms,  mortgages,  stocks, 
bonds,  franchise-values,  and  bank  deposits,  the  task  of 


456      THE  GOVERNMENT  OF  THE  UNITED  STATES 


' 


tion  of 
the  pro- 
fessions. 


making  this  form  of  wealth  contribute  its  just  share  of  the 
public  revenue  presented  a  much  more  difficult  problem. 
Intangible  property,  when  left  to  be  assessed  and  taxed 
by  the  local  authorities,  often  escapes  taxation  altogether. 
Taxes  on  the  profits  of  corporations,  on  franchise  values, 
and  on  inheritances  also  present  practical  difficulties  in  the 
way  of  local  assessment.  So  the  states,  in  many  instances, 
have  provided  the  municipalities  with  assistance ;  in  others 
they  have  taken  the  levying  of  some  taxes  directly  into  their 
own  hands.  State  tax  commissions  or  commissioners  now 
exist  in  more  than  half  the  states,  with  constantly  increasing 
powers  for  the  assessment  of  property  for  purposes  of  taxa- 
tion, both  local  and  state,  and  for  the  collection  of  corpo- 
ration, business,  inheritance,  and  income  taxes,  and  other 
revenues. l 

10.  Reguia-  In  nearly  all  the  states  there  are  various  boards  whose 
business  it  is  to  issue  certificates  for  the  practice  of  different 
professions  or  trades.  There  are  boards  of  medical  and 
dental  examiners,  boards  of  examiners  in  pharmacy,  and  in 
some  states  boards  for  the  licensing  of  stationary  engineers, 
plumbers,  chauffeurs,  nurses,  and  so  on.  In  some  states 
the  courts  are  charged  with  the  duty  of  examining  candi- 
dates for  admission  to  the  practice  of  law ;  in  others  this  is 
handled  by  a  board  of  bar  examiners.  The  general  rules 
concerning  eligibility  for  license  to  practice  these  various 
professions  and  trades  are  made  by  the  legislature ;  but  the 
boards  conduct  the  examinations  and  grant  the  certificates. 
They  have  also,  in  most  cases,  authority  to  hear  charges 
made  against  any  licensed  practitioner  and  to  suspend  or 
revoke  certificates.  The  expense  of  maintaining  these 
licensing  boards  is  usually  defrayed  by  the  fees  which  ap- 
plicants are  required  to  pay. 

All  the  original  state  constitutions  paid  particular  at- 
tention to  the  organization  and  control  of  the  militia.  It 
was  taken  for  granted  that  the  military  forces  of  each  state 
would  be  largely  within  its  own  jurisdiction,  even  though 
the  federal  constitution  gave  to  the  national  government 
certain  authority  in  time  of  peace  and  complete  powers  in 
time  of  war.  The  federal  laws  of  the  last  few  years  have 
1  H.  L.  Lutz,  The  State  Tax  Commission  (Cambridge,  Mass.,  1918). 


11.   Super- 
vision of 
military 
affairs. 


STATE  ADMINISTRATION  457 

greatly  reduced  the  freedom  which  the  several  states  have 
traditionally  possessed  with  reference  to  their  national 
guard  establishments ;  nevertheless,  all  the  states  continue 
to  maintain  departments  of  military  affairs.  Usually  the 
head  of  this  department  is  the  adjutant-general,  appointed 
by  the  governor  in  his  capacity  of  commander-in-chief. 
Associated  with  him  is  a  quartermaster-general,  a  surgeon- 
general,  and  sometimes  an  armory  board.  Or  each  of  these 
officials  may  be,  as  in  Massachusetts,  the  head  of  a  separate 
department. 

In  addition  to  all  the  foregoing  there  are  various  mis-  12.  Miscei- 
cellaneous  departments  which  look  after  the  odds  and  ends  laneous- 
of  state  administration.  Each  state  has  its  quota  of  them, 
but  the  example  of  Massachusetts  will  suffice  to  indicate 
what  some  of  them  are.  In  that  commonwealth  there 
are  an  art  commission,  a  homestead  commission,  a  com- 
missioner of  public  records,  a  comptroller  of  county  accounts, 
a  commissioner  of  state  aid  and  pensions,  a  board  of  boiler 
rules,  a  fire  prevention  commissioner,  a  board  of  appeal  on 
fire  insurance  rates,  a  commissioner  of  weights  and  meas- 
ures, a  commissioner  of  statistics,  and  a  dozen  other  depart- 
ments in  charge  of  commissioners  or  boards  of  trustees. 
Nor  does  this  latter  include  the  numerous  ad  hoc  bodies,  that 
is,  boards  created  to  exercise  functions  of  a  temporary 
nature  such  as  the  building  of  a  state  capitol  or  the  con- 
solidation of  the  state  laws  or  the  taking  of  a  census.  Such 
boards  go  out  of  existence  when  their  work  is  finished. 
Taking  the  entire  category  of  officials  and  boards,  whether 
permanent  or  temporary,  the  number  is  surprisingly  large. 
Each  department,  moreover,  has  its  own  sphere  of  duty  and 
is  independent  of  the  others.  There  is  usually  no  coordinat- 
ing pressure  except  such  as  the  governor  may  be  able  to 
apply. 

This  somewhat  detailed  enumeration  of  state  departments  Outstand- 
has  been  undertaken  in  order  to  emphasize  two  features  of  futures 
state  administration  :  first,  the  scope  and  variety  of  its  tasks,   of  state 
and  second,  the  decentralized  machinery  with  which  these  adm.ims- 
f unctions  are  performed.     Far  more  frequently  than  any 
agencies  of  the  national  government  these  numerous  boards 
and  officials  regulate,  supervise,  and  circumscribe  the  daily 


458      THE  GOVERNMENT  OF  THE  UNITED  STATES 


life 


of  the  citizen, 
who 


Reaction 


the 

increase 
of  state 
boards. 


A  practi- 
cal diffi- 
culty in 
the  way  of 
efficient 
state 
adminis- 
tration. 


This  fact  is  not  appreciated  by  the 
average  man,  wno  is  prone  to  look  upon  the  state  as 
merely  exercising  an  inconsiderable  residuum  of  govern- 
mental authority,  the  bulk  of  which  is  possessed  by  the 
nation  on  the  one  hand  and  by  the  municipalities  on  the 
other.  That  is  far  from  being  the  case.  The  state  is  the 
real  centre  of  public  administration  in  the  United  States. 

It  is  well  that  the  top-heaviness,  the  disintegration, 
and  the  absurd  clumsiness  of  state  administrative  machin- 
ery should  be  impressed  upon  every  student  of  American 
government.  At  the  present  rate  of  increase  some  of 
the  states  will  soon  have  as  many  boards  as  there 
are  problems  to  be  solved.  A  state  board  grows  by  what 
it  feeds  upon.  When  a  new  administrative  department  is 
established,  its  officials  recognize  that  it  must  justify  its 
creation  and  its  continuance  by  finding  enough  work  to  do. 
Having  found  more  work  it  asks  more  power,  more  money, 
more  clerical  assistance.  In  a  few  years  it  becomes  a  far 
more  portentous  affair  than  any  one  anticipated  when  its 
work  began. 

This  tangled  web  of  commissioners  and  boards,  wholly 
unplanned  in  development  or  coordination,  represents  an 
endeavor  to  cope  with  the  new  and  urgent  problems  which 
rapid  growth  in  population  and  in  the  complexity  of  urban 
life  have  thrown  upon  the  public  authorities.  But  it 
embodies  a  method  of  administration  which  cannot  be 
expanded  indefinitely.  The  maze  of  interlocking  jurisdic- 
tions and  of  isolated  centres  of  authority  will  break  down 
of  its  own  sheer  weight.  Some  states  have  already  reached 
the  point  where  they  are  seriously  considering  the  best 
method  of  integrating  this  surfeit  of  officials  and  commissions. 
One  or  two  states,  as  will  be  indicated  later,  have  already 
made  substantial  progress  in  this  direction. 

The  shortcomings  of  state  administration,  as  one  may  so 
easily  observe  them  at  the  present  day,  are  not  wholly  due, 
however,  to  the  multiplication  of  isolated  departments  or 
to  the  lack  of  cooperation  among  them.  Something  is  at- 
tributable to  the  difficulty  which  the  departments  encounter 
in  obtaining  capable  helpers.  In  the  service  of  these  various 
departments  are  a  huge  number  of  subordinate  officials  and 


STATE  ADMINISTRATION  459 

employees.  In  New  York  state  there  are  more  than  eighteen 
thousand  of  them.  Positions  on  the  payroll  of  the  state  are 
everywhere  eagerly  sought,  chiefly  because  the  remuneration 
is  better,  the  discipline  less  strict,  the  hours  of  work  fewer 
per  day,  and  the  holidays  more  frequent  than  in  private  em- 
ployment for  service  of  the  same  quality.  Yet  the  return 
which  the  state  receives  for  its  generosity  as  an  employer  is 
proverbially  small. 

The  lack  of  a  comprehensive  and  genuine  merit  system,  The 
covering  not  only  appointments  but  promotions,  is  chiefly  to 
blame  for  all  this.  State  administration  does  not  in  America,  service, 
as  in  Europe,  offer  a  career  comparable  in  attractiveness  with 
the  regular  professions.  It  does  not  secure  its  recruits  from 
among  the  ambitious  and  capable,  but  to  a  large  extent'  from 
among  those  who  are  satisfied  to  give  no  more  than  the 
worth  of  their  wages  and  who  on  that  account  have  failed  to 
make  headway  in  private  vocations.  The  fault  concerns 
itself,  therefore,  not  only  with  systems  but  with  men.  There" 
are  too  many  departments ;  they  are  too  often  badly  organ- 
ized ;  they  are  rarely  in  any  proper  articulation  with  one 
another ;  and  last,  but  by  no  means  least,  they  are  every- 
where provided  with  employees  who  display  far  less  skill, 
intelligence,  initiative,  and  industry  than  is  to  be  found  in  the 
service  of  ordinary  business  concerns. 

The  state  is  undertaking  a  programme  of  business  regulation 
on  a  huge  scale.  Yet  the  officials  and  employees  to  whom 
it  commits  the  actual  administration  of  this  programme  are 
for  the  most  part  men  who  could  make  no  conspicuous  suc- 
cess in  managing  any  form  of  business  for  themselves. 


CHAPTER  XXXII 

STATE   FINANCE 

Develop-          THE  states  of  the  Union  began  their  history  with  financial 

ment  of        methods  which  were  simple  and  uniform.     They  did  not,  at 

financial       ^ne  outset,  attempt  to  do  much  in  the  Way  of  public  services. 

systems.       They  required  very  little  money,  and  they  got  most  of  it  from 

the  same  sources.     But  as  time  went  on  and  administrative 

functions  were  extended  the  need  for  more  money  appeared. 

New  ways  of  obtaining  it  and  of  spending  it  were  developed, 

until  to-day  the  various  systems  of  state  finance  are  neither 

simple  nor  in  any  degree  alike. 

The  scope  Public  finance,  whether  in  nation,  state,  or  city,  is  usually 
of  public  considered  under  three  main  heads  :  revenue,  expenditure, 
and  debt.1  But  each  of  these  headings  suggests  various 
subdivisions.  Under  the  head  of  revenue  is  necessarily 
included  a  discussion  of  the  various  sources  from  which  a 
public  authority  obtains  money  to  carry  on  its  work,  whether 
from  taxes  on  property  or  from  the  granting  of  privi- 
leges, from  fees,  from  the  sale  of  public  lands,  and  so  on. 
Likewise,  there  are  questions  as  to  the  mechanism  by  which 
the  taxes  are  levied,  the  system  of  assessment,  the  classi- 
fication of  property  for  taxation,  and  the  practice  of  exempt- 
ing certain  forms  of  property  from  taxation  altogether. 
Under  the  general  head  of  expenditure  various  important 
questions  also  arise.  Who  may  appropriate  money  and 
under  what  restrictions  ?  How  and  by  whom  is  the  budget 
made,  if  there  is  a  budget?  What  checks  are  there  upon 
extravagance  or  dishonesty  in  expenditures?  Finally,  a 

1  H.  C.  Adams,  The  Science  of  Finance  (N.  Y.,  1898) ;  C.  F.  Bastable, 
Public  Finance  (3d  ed.,  N.  Y.,  1903) ;  W.  M.  Daniels,  The  Elements  of 
Public  Finance  (N.  Y.,  1899) ;  and  C.  C.  Plehn,  Introduction  to  Public 
Finance  (3d  ed.,  N.  Y.,  1915),  are  some  of  the  best-known  books  in  this 
field. 

460 


STATE  FINANCE  461 

consideration  of  state  debts  brings  forward  such  matters  as 
constitutional  limitations  upon  indebtedness,  the  methods 
of  borrowing,  and  the  nature  of  the  arrangements  made  for 
the  payment  of  public  debts  as  they  mature. 

Of  the  entire  revenue  obtained  by  the  several  American  Sources  of 
states  at  the  present  time  the  larger  part  comes  from  taxes  Revenue. 
on  real  and  personal  property,  usually  but  not  always  in  the 
form  known  as  the  "general  property  tax."     This  is  a  tax  The  general 
levied  at  a  uniform  rate  upon  the  assessed  value  of  real  £™perty 
property,  which  includes  lands  and  buildings,  and  upon 
personal  property  such  as  merchandise,  bonds,  stocks,  and 
mortgages.     Taxes  on  property  may  be  levied  by  the  state 
directly,  or  they  may  be  imposed  by  the  county,  city,  or 
town,  and  then  turned  over  in  part  to  the  state  treasury. 

Most  of  the  states  formerly  maintained  in  their  constitu-  Restrictions 
tions  a  provision  that  all  taxes  on  property  should  be  general  ^J^g^ 
or  proportional ;  in  other  words  that  all  property  of  whatso-  tion  of 
ever  kind,  if  taxed  at  all,  should  be  taxed  at  a  uniform  rate.  ^^^ 
This  provision  was  part  and  parcel  of  a  political  philosophy  atkm. 
which  insisted  upon  the  strict  equality  of  all  men  before  the 
law.    That  dogma  was  interpreted  so  rigidly  in  the  early  years 
of  American  history  that  public  opinion  regarded  the  taxing 
of  one  form  of  property  at  a  different  rate  from  another  as 
an  act  of  discrimination  and  fundamental  injustice.     The 
natural  equality  of  men  extended,  it  was  assumed,  not  only 
to  their  persons  but  to  their  property.     In  these  earlier  days, 
moreover,  property  consisted  for  the  most  part  of  tangible 
things  :  lands,  buildings,  merchandise,  and  slaves.     Securities 
or  intangibles,  such  as  mortgages,  bonds,  and  stocks,  did  not 
form  a  large  factor  in  the  total  wealth  of  the  community. 

In  recent  years  this  situation  has  altogether  changed.  Removal 
The  idea  that  taxation  should  regard  first  of  all  the  inalien-  ^stric- 
able  rights  of  the  individual  has  been  supplanted  by  the  tions. 
doctrine  that  it  should  make  the  general  good  of  the  whole 
people  its  foremost  care.     Moreover,  the  growth  of  intan- 
gible wealth  during  the  last  half  century  has  been  enormous. 
It  now  forms  the  major  element  in  the  national  opulence. 
Its  distribution  among  the  people  has  become  so  unequal 
that  the  imposition  of  taxes  at  a  uniform  rate  no  longer 
serves  the  ends  of  social  justice.     Hence   it  is  commonly 


462      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  tax- 
ing of 
intangible 
property. 


What  the 

states 
may  tax. 


believed  that  a  more  equitable  distribution  of  public  burdens 
can  be  made  by  classifying  property  into  various  forms  and 
by  levying  a  different  rate  upon  each.  Many  of  the  states 
now  permit  this  to  be  done,  but  the  requirement  as  to  uni- 
formity still  remains  in  about  one-third  of  them. 

Entirely  apart  from  any  theory  of  social  justice  in  taxation 
there  is  also  the  practical  consideration  that  when  a  state 
or  city  attempts  to  tax  both  tangible  and  intangible  property 
at  the  same  rate,  a  large  portion  of  the  latter  escapes  taxation 
altogether  and  the  former  is  forced  to  bear  a  disproportionate 
share  of  the  burden.  Lands  and  buildings,  machinery  and 
merchandise,  cattle  and  grain,  are  in  sight  to  be  levied  upon ; 
they  cannot  be  spirited  out  of  view.  But  intangible  wealth 
does  not  parade  itself  to  be  taxed,  and  unless  the  owner, 
either  voluntarily  or  by  compulsion,  comes  forward  with  a 
declaration  of  its  value  it  is  difficult  to  list  it  for  taxation 
at  all.  Bonds  and  stocks  are  stowed  away  in  safety-deposit 
boxes.  It  is  mainly  for  this  reason  that  in  one  state  after 
another  during  recent  years  the  practice  of  separating 
tangible  from  intangible  property  and  of  levying  a  much 
lower  rate  upon  the  latter  has  been  adopted.  This  lower 
rate  is  either  placed  directly  upon  the  value  of  intangible 
property  or  it  is  levied  upon  the  income  derived  therefrom. 
In  either  case  there  is  usually  a  legal  requirement  that  every 
owner,  trustee,  or  recipient  of  income  (with  certain  excep- 
tions) must  file  a  sworn  declaration  as  a  basis  for  a  true 
assessment.  Only  in  this  way  has  it  proved  practicable 
to  make  wealth  in  the  form  of  securities  pay  its  due  con- 
tribution to  the  public  income.  When  taxed  at  the  same 
rate  as  tangible  property  a  large  part  of  it  will  evade  taxa- 
tion at  all  hazards,  even  if  it  be  necessary  to  remove  it  outside 
the  taxing  jurisdiction  of  the  state  altogether. 

States  have  the  right  to  tax  all  tangible  property  situated 
within  their  borders  no  matter  to  whom  it  belongs.  The 
only  exception  is  property  belonging  to  the  United  States. 
But  they  have  no  legal  right  to  tax  tangible  property  out- 
side their  own  limits,  even  though  the.  owner  resides  within. 
^Intangibles  may  be  taxed  either  where  the  owner  resides 
or  where  the  securities  are  kept.  The  usual  plan,  in  accord- 
ance with  the  principle  mobilia  sequuntur  personcum,  is  to  levy 


STATE  FINANCE  463 

the  taxes  upon  the  intangibles  where  the  owner  has  his 
domicile  or  legal  residence.  Income  derived  from  property 
in  other  states  is  also  taxable  where  the  recipient  resides  and 
not  at  its  source.  No  state  or  subdivision  of  a  state  may  tax 
any  intangible  property  in  the  form  of  bonds  or  other  obli- 
gations of  the  United  States,  nor  may  it  tax  any  tangible 
property  such  as  lands,  fortifications,  buildings,  or  equipment 
belonging  to  the  federal  government.  This  was  made  clear, 
it  will  be  remembered,  in  the  case  of  McCulloch  vs.  Mary- 
land. But  the  instrumentalities  of  interstate  commerce, 
such  as  stations,  wharves,  telegraph  lines,  although  their 
operations  are  under  federal  control,  may  be  taxed  as 
property  by  any  state  so  far  as  they  happen  to  be  within 
its  boundaries. 

The  levying  of  taxes  is  always  preceded  by  a  formal  step  The  process 
known  as  the  assessment.  In  nearly  all  the  states  outside' 
New  England  this  assessment  or  recording  of  property 
valuation  is  made  by  county  officials.  The  same  lists  are' 
then  used  as  the  basis  of  state  and  county  and  municipal 
taxes.  Usually  some  higher  authority,  often  called  a  board 
of  equalization,  has  power  to  review  these  assessments,  to 
hear  appeals  from  the  action  of  the  assessors,  and  to  adjust 
or  equalize  where  necessary.  In  any  event  the  assessments 
are  revised  from  time  to  time,  sometimes  every  year,  but 
for  purposes  of  state  and  county  taxation  not  usually  more 
often  than  once  in  every  three  or  five  years.  Ostensibly  all 
property  is  assessed  either  at  its  fair  market  value  or  at  a 
designated  percentage  of  that  appraisal  as  provided  in  the 
tax  laws.  In  Illinois,  for  example,  the  stipulated  percentage 
is  one-third  of  the  actual  value.  Throughout  the  country 
the  work  of  assessing  is  rather  poorly  performed  because  the 
assessors  are  usually  elective  officials  with  no  special  training 
for  the  function  of  estimating  property  values  correctly. 
Much  of  what  they  do  is  mere  guesswork. 

While  many  states  place  their  chief  reliance  upon  the  other 
taxation  of  property,  either  at  uniform  or  classified  rates,  all 
of  them  have  other  taxes  and  some  derive  a  large  part  of 
their  entire  income  from  these  other  sources.     The  inheri-  Thein- 
tance  tax  is  one  of  them.     It  is  levied  upon  inherited  property 
and  the  rate  of  taxation  commonly  rises  with  the  distance  at 


464      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Taxes  on 
incomes. 

Corpora- 
tion taxes. 


Poll  taxes. 


Revenues 
from 
sources 
other  than 
taxation. 


State  ex- 
penditures. 


which  the  heirs  stand  in  point  of  blood  relationship.  Oc- 
casionally, moreover,  it  is  progressive  in  rate  according  to 
the  value  of  the  estate.  Small  inheritances  are  usually 
exempt. 

Taxes  on  the  income  of  individuals  and  on  the  income  of 
corporations  are  also  levied  in  several  states.  Corporations, 
especially  railroads,  street  railways,  lighting,  telegraph,  and 
telephone  companies,  banks,  and  insurance  organizations 
are  being  more  and  more  placed  in  special  categories  and 
taxed  accordingly.  In  some  states  they  contribute  large 
amounts  each  year  to  the  public  income.  Poll  taxes  do  not 
yield  a  great  deal,  as  a  rule,  for  the  individual  tax  is  small 
and  a  large  percentage  of  it  frequently  remains  uncollected. 
Some  states  have  abolished  it  altogether. 

Other  sources  of  state  revenue  are  the  license  fees  exacted 
from  certain  forms  of  business.  The  proceeds  from  liquor 
licenses  have  hitherto  formed  the  largest  item  among  these. 
As  a  rule,  the  state  turns  back  a  part  of  whatever  money  it 
may  derive  from  these  licenses,  usually  the  larger  part,  to 
the  municipalities.  License  fees  are  also  collected  from 
some  other  forms  of  business,  occasionally  by  the  state  but 
more  often  by  the  local  authorities.  Fees  of  various  sorts 
come  into  the  state  treasury  from  many  quarters,  fees  paid 
by  corporations  when  organized,  by  lawyers  when  admitted 
to  practice,  by  owners  of  automobiles  and  by  others  too 
numerous  to  mention. 

When  money  comes  into  the  state  treasury  it  can  be  paid 
out  again  in  only  one  way,  that  is  under  authority  of  an 
appropriation  duly  made  by  the  legislature.  The  appro- 
priation may  be  specific,  designating  a  certain  sum  for  a 
certain  purpose,  or  it  may  be  general  and  continuing,  as  for 
example  when  it  authorizes  a  state  department  to  expend 
such  amounts  as  it  may  receive  in  fees.  Most  of  a  state's 
income  is  appropriated  annually  or  biennially  upon  esti- 
mates of  necessary  or  desirable  expenditure  submitted  to  the 
legislature  by  the  governor  or  the  heads  of  departments, 
but  appropriations  are  also  made  on  the  initiative  of  the 
legislature  itself. 

It  is  a  general  rule  of  American  state  government,  whether 
written  or  unwritten,  that  measures  which  involve  the 


STATE  FINANCE  465 

expenditure  of  money  shall  originate  in  the  lower  chamber  Appropria- 
of   the   legislature.     The   upper   chamber   may,    however, 
amend  or  reject  such  measures.     But  in  none  of  the  states,  in  the 
with   one   exception,   is   there   anything   approaching    the  cham 
English  practice  which  restricts  the  initiative  in   appro- 
priations to  members  of  the  executive  department.1     Any 
citizen  may  father  a  proposal  to  spend  the  state's  money,  and 
he  usually  finds  no  difficulty  in  getting  some  member  of  the 
legislature  to  introduce  it  for  him.     The  authority  to  propose 
outlays  is  not  in  America  an  executive  prerogative  as  it  is 
in  countries  where  the  doctrine  of  coordinate  governmental 
powers  prevails.     Hence  there  are  proposals  of  expenditure 
from  all  quarters,  each  one  making  its  own  bid  for  adoption. 
That  is  one  reason  why  the  states  spend  so  much. 

The  process  by  which  a  state's  total  expenditure  for  any  HOW  appro- 
year  is  authorized  may  be  summarized  as  follows :  shortly 
after  the  legislature  convenes  it  is  the  custom  of  the  vari-  made, 
ous  administrative  departments  (for  example,  the  attorney- 
general's  office,  the  state  board  of  charities,  the  state  board 
of  education  and  so  on)  to  transmit  to  the  legislature 
either  directly  or  through  some  designated  officer  their  esti- 
mate of  what  each  requires.  These  estimates  are  referred 
to  the  various  committees  of  the  legislature  and  may  also 
go  to  some  general  committee  on  appropriations  or  finance 
by  which  they  are  reported  back  to  the  legislature  either 
with  or  without  changes.  Then  in  the  form  of  appropriation 
bills  they  pass  the  legislature  like  other  measures.  The 
estimates  rarely  come  before  the  legislature  all  at  once. 
They  straggle  in  at  various  stages  of  the  session.  Mean- 
while, a  throng  of  bills  carrying  appropriations  or  providing 
new  revenues  are  brought  forward  by  members  of  the  legis- 
lature on  their  own  responsibility,  and  although  many  of 
these  fail  to  advance  very  far,  there  are  always  some  which 
work  their  way  to  enactment.  Until  the  session  comes  to 
an  end,  therefore,  no  one  can  tell  just  what  the  total  revenue 
or  expenditure  is  going  to  be.  Thus  the  prime  essential  of 
a  sound  financial  system,  accurate  knowledge  of  income  and 
outgo,  is  lacking  in  most  of  the  states.  To  express  it  in 
another  way,  less  than  one-third  of  the  states  have  what 

1  See  above,  p.  306. 
2n 


466      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Types  of 
budget 
systems : 
1.   The 
legislative 
budget. 


2.   The 

joint 
budget. 


is  known  to  students  of  public  finance  as  a  budget 
system.1 

Among  the  fourteen  or  fifteen  states  which  now  have  sys- 
tems of  budgetary  control  three  wholly  different  methods  of 
budget  making  are  in  vogue.  First,  there  is  the  "  legislative 
budget "  system,  of  which  Massachusetts  is  the  chief  expo- 
nent. In  that  state  the  estimates  are  all  transmitted  to  a 
standing  committee  on  ways  and  means,  made  up  of  members 
from  both  chambers  of  the  legislature.  There  the  various 
items  are  scrutinized,  altered  as  may  be  deemed  advisable, 
embodied  in  one  large  appropriation  bill,  and  reported  in 
revised  form  to  the  state  House  of  Representatives,  where 
it  goes  through  the  regular  procedure.  The  distinguishing 
feature  of  this  system  is  that  the  framing  of  the  budget  is 
entirely  in  the  legislature's  hands.  Executive  officials  have 
no  direct  part  in  it. 

In  half  a  dozen  states  or  so,  including  New  York  and 
Wisconsin,  the  work  of  preparing  the  budget  is  intrusted 
to  a  board  or  committee  which  is  usually  made  up  of  certain 
administrative  officials  (such  as  the  state  comptroller,  tax 
commissioner,  and  sometimes  the  governor),  together  with 
the  chairmen  of  the  appropriation  committees  in  the  two 
branches  of  the  state  legislature.  The  idea  embodied  in 
this  plan,  which  may  be  called  the  "joint  budget"  system, 
is  that  both  the  legislative  and  executive  branches  of  the 
government  should  be  represented  in  the  making  of  financial 
proposals  because  the  plans  will  be  broader,  more  accurate, 
and  more  acceptable  to  all  concerned  when  they  are  prepared 
by  joint  counsel  than  when  made  wholly  by  either  organ  of 
government  alone.  As  to  the  exact  composition  of  this 
joint  body  there  is  considerable  variation  among  the  half 
dozen  states  which  have  adopted  the  plan,  but  the  principle 
is  the  same,  namely,  that  the  legislature  should  have  a  share, 
though  not  an  exclusive  share,  in  preparing  the  state  budget. 

The  third  plan  of  budget-making,  which  is  used  in  seven 
or  eight  states,  including  Ohio,  New  Jersey,  and  Maryland, 

1  On  budgets  and  budget-making  methods,  see  S.  Gale  Lowrie,  The 
Budget  (Madison,  1912) ;  E.  E.  Agger,  The  Budget  in  the  American 
Commonwealths  (N.  Y.,  1907) ;  and  Bulletin  No.  2  of  the  Massachusetts 
Constitutional  Convention  entitled  "State  Budget  Systems  in  the  United 
States"  (Boston,  1917). 


STATE  FINANCE  467 

is  commonly  known  as  the  "executive  budget"  system.  3.  The 
Under  this  arrangement  the  function  of  preparing  a  tentative 
budget  of  estimated  revenue  and  expenditure  is  intrusted 
to  the  governor  alone.  The  various  financial  officers  trans- 
mit to  him  their  estimates  of  probable  income,  and  the 
administrative  departments  send  in  a  statement  of  what 
money  they  desire  for  carrying  on  their  work.  To  these 
the  governor,  after  making  such  changes  as  he  desires,  adds 
his  own  proposals,  whether  they  concern  new  revenues  or 
new  outlays.,  Then  the  whole  budget  is  laid  before  the 
legislature  for  its  consideration. 

In  all  these  states  except  Maryland  the  legislature  retains  Budget 
full  power  to  amend  or  reject  the  budget  whether  prepared  j^0^8  of 
by  its  own  committee,  or  by  a  joint  body,  or  by  the  governor  tures. 
alone.     It  may  increase,  reduce,  strike  out,  or  insert  any 
item.     In  Maryland,  by  a  constitutional  amendment  adopted 
during  1916,  the  legislature  is  restricted  to  the  power  of 
reducing  or  striking  out  items  only;  it  cannot  insert  or 
increase.     The  idea  is  to  concentrate  upon  the  governor 
the  sole  responsibility  for  all  increases  in  state  expenditure. 
The  Maryland  legislature  is  not,  however,  deprived  of  all  The  Mary- 
initiative  in  matters  of  state  finance.     On  any  matter  not 
included  in  the  governor's  budget  the  legislature  may  make, 
upon  its  own  initiative,  supplementary  appropriations,  but 
only  under  a  special  and  rather  difficult  procedure  which  the 
constitution  provides. 

There  has  been  much  discussion   as  to  which  of  these  Relative 
budget-making  plans  is  likely  to  give  the  best  results.     Is  the  3S^en°f 
work  of  budget-making  primarily  a  legislative  or  an  executive  budget 
function  ?     In  England,  where  the  fruits  of  long  experience  plans* 
are  available,  the  entire  initiative  in  all  financial  matters 
rests  with  the  executive,  the  ministry.     But  the  ministry, 
although  constituting  the  executive,  is  nevertheless  a  great 
standing  committee  of  parliament,  all  its  members  having 
seats  in  parliament.     For  its  continued  existence  the  minis- 
try is  dependent  upon  the  will  of  that  body.     It  is  therefore 
quite  defensible  to  argue  that  England  has  a  legislative 
budget  system,  since  parliament,  through  a  body  made  up  of 
its  own  members,  controls  the  entire  budget-making  power 
from  start  to  finish.     In  the  United  States,  however,  owing 


468      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 
absence 
of  budgets 
in  most 
of  the 
states. 


The  ex- 
ecutive 
type  of 
budget  is 
proving 
the  most 
popular. 


to  the  divorce  of  executive  from  legislative  power,  there  is  no 
way  in  which  the  function  of  budget-making  can  be  given 
entirely  to  one  branch  of  the  government  without  excluding 
the  other.  Hence,  the  rather  cumbrous  and  not  altogether 
promising  experiment  with  joint  budget-framing  boards. 
The  tendency  in  the  states  is  towards  vesting  the  budget- 
making  power  in  the  governor  alone.  This  is  because  the 
plan  insures  concentration  of  responsibility  and  in  the  long 
run  is  apt  to  prove  the  most  effective  method  of  keeping 
expenditures  within  bounds. 

In  most  of  the  states  the  continued  waste  of  public  money 
is  not  occasioned  by  the  use  of  one  rather  than  the  other  of 
the  foregoing  budgetary  systems,  but  by  the  fact  that  they 
have  no  budgets  at  all.  Administrative  officials  go  directly 
and  individually  to  the  legislature  for  their  appropriations, 
and  they  usually  get  what  money  they  ask  for,  provided 
they  are  influential  enough  politically.  Members  of  the 
legislature  spend  their  time  and  energies  in  trading  and 
bargaining  their  votes  on  different  appropriations,  each 
striving  to  muster  support  for  the  things  in  which  their 
own  districts  are  concerned.  The  interests  of  reasonable 
economy  demand  that  responsibility  for  proposals  of  in- 
creased expenditure  shall  be  lodged  somewhere.  At  pres- 
ent, in  two-thirds  of  the  states,  it  is  located  nowhere.  It 
rests  neither  with  the  governor  nor  with  the  legislature. 
It  is  the  right  and  privilege  of  any  official,  of  any  member  of 
the  legislature,  and  indeed  of  any  citizen,  to  set  the  wheels 
in  motion  towards  new  expenditures.  Proposals  to  spend 
money  come  forward  every  year  by  the  thousand.  Their 
chance  of  adoption  is  not  proportioned  to  their  merits,  but 
rather  to  the  political  influences  behind  them. 

The  governor  represents  the  state  as  a  whole,"  and  the 
general  direction  of  financial  policy  may  on  that  account 
be  appropriately  committed  to  him.  But  this  policy,  if 
consistently  followed,  would  disturb  the  traditional  balance 
of  power  in  state  government.  Analogous  action  in  city 
government  has  made  the  mayor  a  much  more  powerful 
officer  than  he  used  to  be.  It  is  altogether  probable,  judg- 
ing from  municipal  experience,  that  a  budget  system  like 
that  of  Maryland,  if  generally  adopted  by  the  states,  would 


STATE  FINANCE  469 

in  time  greatly  weaken  the  authority  of  the  legislature  in 
matters  of  financial  policy  and  lead  to  executive  supremacy 
in  that  field.  Such  an  outcome,  however,  would  not  neces- 
sarily be  unfortunate,  and  there  are  indications  that  the 
evolution  of  state  government  is  steadily  working  towards  it. 

State  expenditures  have  risen  at  a  rapid  rate  during  the  The  rapid 
past  generation,  more  rapidly  than  the  increase  of  population  ^state 
or   the   growth   of   property   values.     During   the   decade  expendi- 
1906-1916  they  more  than  doubled,  and  in  the  last-named  tures* 
year  amounted  to  more  than  four  hundred  million  dollars. 
Only  a  small  part  of  this  increase  has  been  due  to  the  rising 
cost  of  services  and  materials ;  in  larger  measure  it  is  merely 
an  indication  that  the  several  states  are  taking  on  new 
functions  without  having  learned  to  perform  either  new  or 
old  functions  economically.     Scarcely  a  legislative  session 
passes  in  any  of  the  states  without  some  new  activity  being  Reasons 
undertaken,  whether  in  education,  in  the  care  of  the  poor,  therefor- 
in  the  regulation  of  industry,  in  protecting  the  public  health, 
in  building  state  roads,  in  humanizing  the  prison  system, 
and  what  not.     All  these  new  services  cost  money,  very 
little  at  the  outset,  perhaps,  but  more  and  more  as  they  get 
under  way.     Hence   state   expenditures   keep   growing  in 
spite  of  the  spasmodic  endeavors  of  governors  and  legisla- 
tures to  keep  them  down.     It  is  difficult  to  make  the  reve- 
nues keep  pace.     The  problem  of  making  both  ends  meet 
has   become,    accordingly,   the   most   difficult   problem   of 
American  state  government.     It  is  not  being  satisfactorily 
solved.     Many  of  the  states,  although  their  annual  reports 
may  not  show  it,  are  regularly  spending  more  than  they  take 
in.     That  is  one  reason  for  the  growing  burden  of  state 
indebtedness. 

The  states,  like  the  nation,  have  power  to  borrow  money  state 
and  are  unrestricted  in  the  exercise  of  this  power  by  any 
provision  of  the  national  constitution  except  that  they  may  limits, 
not  "emit  bills  of  credit/7  that  is  to  say,  they  may  not  issue 
paper  money.     But  many  of  the  state   constitutions  set 
forth  limitations  upon  the  borrowing  power.1     These  con- 
stitutional "debt  limits"  are   of   several   sorts.     In  some 

1  Horace  Secrist,  An  Economic  Analysis  of  the  Constitutional  Restrictions 
upon  Public  Indebtedness  in  the  United  States  (Madison,  1914). 


470      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Is  the 

present 

debt 

burden 

excessive? 


states  a  definite  sum  is  fixed,  above  which  indebtedness  must 
not  be  incurred  except  for  special  purposes,  or,  in  some 
instances,  except  with  the  express  assent  of  the  people 
obtained  at  a  referendum.  In  other  states  no  definite  sum 
is  fixed  in  the  constitution,  but  the  purposes  for  which  debts 
may  be  incurred  are  carefully  specified,  and  borrowing  for 
other  purposes  is  not  permitted  except  when  certain  onerous 
formalities  have  been  complied  with.  A  few  states  fix  the 
limit  of  indebtedness  at  a  certain  percentage  of  the  total 
assessed  value  of  taxable  property.  Only  four  of  the  forty- 
eight  states  have  no  constitutional  debt  limits  at  all.  In  the 
remaining  forty-four  the  limitations  are  of  the  widest  variety 
in  character,  scope,  and  stringency.  At  the  one  extreme  is 
Louisiana,  which  permits  no  borrowing  at  all  except  for  the 
purpose  of  repelling  invasion  or  suppressing  insurrection ; 
at  the  other  is  Massachusetts,  which  has  allowed  its  legisla- 
ture1 to  borrow  as  much  as  it  pleased. 

Naturally  there  is  a  great  variation  in  the  amounts  of 
indebtedness  which  the  several  states  are  carrying.  This 
is  not  altogether  due  to  the  presence  or  absence  of  consti- 
tutional checks  upon  the  borrowing  power,  but  is  in  part 
accounted  for  by  the  wide  difference  in  what  the  several 
states  undertake  to  do  for  their  citizens.  No  one  of  the 
forty-eight  states  is  entirely  without  debt,  although  a  few  of 
them  have  no  net  debt ;  in  other  words,  their  sinking-fund 
assets  are  sufficient  to  cover  all  obligations  as  they  mature. 
Others  have  debts  of  moderate  but  steadily  expanding 
dimensions,  while  not  a  few  are  paying  interest  each  year  on 
many  millions  of  bonds.  The  net  debt  of  New  York  state  is 
more  than  one  hundred  and  twenty-five  millions.  Massa- 
chusetts and  California  come  next,  with  less  than  a  quarter 
of  that  sum.  In  estimating  the  burden  which  a  debt  im- 
poses upon  any  state  it  is  usual  to  express  it  in  terms  of  so 
much  per  head  of  population.  On  that  basis  the  burden  is 
nowhere  excessive.  The  net  debt  of  New  York  is  only  about 
thirteen  dollars  per  capita ;  that  of  California,  less  than  ten 
dollars.  The  national  debt  of  the  United  States,  expressed 
in  per  capita  terms,  is  many  times  as  much. 

The  states  borrow  money,  when  they  have  occasion  to  do 
1  In  November,  1918,  Massachusetts  established  a  debt  limit. 


STATE  FINANCE  471 

so,  by  the  issue  of  bonds.  These  bonds  run  from  ten  to  fifty  Methods  of 
years  or  even  longer  in  some  cases.     A  generation  or  two  ^r°7ing' 
ago  it  was  the  almost  invariable  custom  to  issue  bonds  with  providing 
no  special  provision  for  having  funds  in  hand  to  pay  them  at 
maturity.     Consequently  when  the  bonds  fell  due  in  twenty 
or  fifty  years  thereafter,  there  was  no  easy  way  of  making 
payment  except  by  re-borrowing.     Sometimes  this  could  be 
effected  at  some  saving  by  the  issue  of  new  bonds  bearing  a 
lower  rate  of  interest  than  the  old.     Paying  off  old  bonds 
by  issuing  new  ones  at  a  lower  rate  of  interest,  as  has  been 
mentioned,  is  commonly  known  as  refunding.     But  in  recent 
years  it  has  become  the  practice,  although  there  are  still 
many  departures  from  it,  to  provide  a  sinking-fund  whenever  i.  The 
an  issue  of  bonds  is  made.     This  is  a  fund  into  which  is  paid  fJJming~ 
every  year  out  of  current  income  a  sum  sufficient  to  enable  system, 
the  bonds  to  be  redeemed  when  they  mature. 

The  sinking-fund  method  of  providing  for  the  ultimate  Defects 
liquidation  of  state  debts  is  of  course  far  better  than  no  p^8 
provision  at  all,  yet  in  actual  practice  it  has  shown  serious 
defects.  The  necessary  annual  contributions  to  the  fund  \  , 
are  sometimes  omitted  for  one  reason  or  another,  usually 
because  of  urgent  demands  from  other  quarters.  Money 
is  sometimes  taken  from  the  fund  to  meet  a  temporary 
emergency  and  then  is  not  replaced.  The  sinking-funds  are 
occasionally  invested  without  due  care  and  lost.  When  a 
state  invests  its  sinking-funds,  it  takes  the  same  risk  as  a 
private  individual.  Because  of  losses  in  the  past  the  laws 
now  restrict  the  investment  of  sinking-funds  in  such  way  as 
to  reduce  the  element  of  risk  to  a  minimum.  But  in  any 
case  the  sinking-fund  places  a  large  amount  of  money  and 
securities  in  the  custody  of  a  few  officials  who  are  usually^, 
chosen  by  popular  vote,  the  state  treasurer  or  a  board  of 
sinking-fund  commissioners.  The  temptation  to  deposit 
the  funds  in  favored  banks  or  in  other  ways  to  use  them 
for  political  or  personal  ends  is  sometimes  too  strong  to  be 
resisted.  Hence  it  often  happens,  for  one  reason  or  another, 
that  sinking-funds  do  not  contain  enough  money  when  the 
time  comes  to  use  them  in  extinguishing  the  state's  obliga- 
tions. 

A  better  plan  of  borrowing  is  to  serialize  the  dates  of 


472      THE  GOVERNMENT  OF  THE  UNITED  STATES 


2.   The 
serial  bond 
system. 


Some 
general 
consid- 
erations. 


maturity  in  such  way  that  one  or  more  bonds  will  come  due 
for  payment  each  year.  This  serial  bond  plan  obviates 
entirely  the  need  of  creating  sinking-funds.  A  definite 
proportion  of  the  debt  is  regularly  extinguished  each  year 
by  applying  from  current  revenue  what  would  go  into  the 
sinking-fund,  more  or  less.  Many  cities  now  use  the  serial 
plan,  and  a  few  of  the  states  have  adopted  it  with  highly 
satisfactory  results.  Between  the  ultimate  cost  of  the  two 
plans  there  is  no  great  difference,  provided  each  is  carried 
out  exactly  as  planned.  But  in  actual  practice  the  serial 
plan  almost  invariably  works  out  to  be  the  cheaper  method 
of  borrowing,  for  it  entails  no  long  holding-over  and  invest- 
ing of  money  with  the  attendant  dangers  of  loss.1 

It  has  been  the  custom  in  some  states  to  look  upon  all. 
public  debts  as  evils  to  be  scrupulously  avoided.  In  others 
the  idea  seems  to  be  that  nothing  should  be  paid  for  out  of 
current  income  if  by  any  way  it  can  be  provided  for  by  loan, 
and  thus  passed  on  to  a  future  generation.  Neither  policy 
is  sound.  When  money  is  needed  for  public  works  of  endur- 
ing character,  such  as  a  state  capitol  or  a  system  of  canals  or 
of  state  highways,  borrowing  is  a  legitimate  and  even  an 
equitable  way  of  obtaining  it.  It  is  neither  just  nor  expe- 
dient that  the  taxpayers  of  to-day  should  be  forced  either  to 
bear  the  whole  burden  or  go  without.  The  cost  of  capital 
improvements  may  fairly  be  pro-rated  over  the  years  in 
which  they  are  destined  to  render  service  to  the  public. 
On  the  other  hand,  future  generations  will  have  their  own 
sufficient  burdens  and  ought  not  to  be  unduly  hampered  by 
legacies  of  debt  from  the  past. 

1  Bulletin  No.  21  of  the  Massachusetts  Constitutional  Convention, 
entitled  "Methods  of  Public  Borrowing,  Sinking  Funds  vs.  Serial  Bonds" 
(Boston,  1917),  and  references  therein  given. 


CHAPTER  XXXIII 

STATE   PARTIES  AND   PRACTICAL  POLITICS 

IN  its  party  organization  as  well  as  in  its  frame  of  govern-  Theoretical 
ment  each  state  of  the  Union  is  an  independent  unit.  The  oJ^te^ 
states  control  all  such  matters  as  the  suffrage,  the  methods  parties, 
of  nomination,  the  settlement  of  electoral  disputes,  and 
even  the  mechanism  of  the  parties  themselves.  The  system 
of  party  committees,  the  methods  of  raising  and  spending 
party  funds,  and  many  other  essentials  of  party  organization 
are  determined  by  the  state  laws.  In  matters  affecting  the 
machinery  and  work  of  its  political  parties  each  state  has 
complete  self-government.  There  are  national  party  com- 
mittees, as  has  been  seen,  but  they  do  not  control  the  state 
organizations.  This  aspect  of  state  self-government,  to 
wit,  party  independence,  has  not  always  received  the 
emphasis  it  deserves,  but  it  is  important  because  the  party 
system,  as  Lord  Bryce  once  remarked,  is  the  power  which 
sets  and  keeps  in  motion  the  wheels  and  pistons  of  rep- 
resentative government. 

Since  each  state  is  independent  as  regards  the  organization 
and  machinery  of  its  political  parties,  it  is  quite  conceivable 
that  each  might  develop  and  maintain  a  different  system  from 
the  others,  that  each  might  have  its  own  set  of  political 
parties  based  upon  state  issues  and  in  no  way  connected 
with  party  organization  in  other  states.     But  that  is  not  But  state 
what  has  happened.     The  same  party  divisions  exist  in  all  ^ional 
the  states,  and  these  divisions  are  not  determined  by  state  parties 
issues.     Interest  in  questions  of  national  policy  has  over-  ^®mc 
shadowed,  on  the  whole,  popular  interest  in  matters  with  identified, 
which  the  individual  states  have  to  deal,  and  the  consequence 
is  that  the  great  lines  of  political  cleavage  run  their  course 
right  through  the  nation  from  end  to  end.     Party  lines  in 

473 


474      THE  GOVERNMENT  OF  THE  UNITED  STATES 


With  a 
few  tem- 
porary 
exceptions. 


Reasons 
for  this 
identifi- 
cation of 
state  and 
national 
parties. 


the  nation  and  in  the  states  have  become  for  all  practical 
purposes  identical,  and  it  is  national  issues  that  determine 
them. 

To  this  general  rule,  there  are,  no  doubt,  some  exceptions. 
A  political  party  may  prove  itself,  in  any  state,  stronger  or 
weaker  in  national  than  in  state  campaigns.  But  when  this 
occurs  it  is  usually  due  to  some  abnormal  circumstance  such 
as  the  injection  of  a  non-partisan  issue,  or  to  dissensions 
within  one  of  the  organizations,  or  to  some  other  factor 
which  causes  a  partial  breakdown  of  the  regular  party  lines  for 
the  time  being.  In  the  normal  course  of  events  the  strength 
of  a  political  party  is  approximately  the  same  in  state  and 
national  affairs,  although  there  is  for  the  most  part  no 
relation  whatever  between  the  political  issues  in  the  two 
fields  of  government. 

The  reason  for  this  identification  of  state  and  national 
party  lines  is  to  be  found  in  the  fact  that  during  the  first 
twenty-five  years  after  the  formation  of  the  Union  many 
national  questions  of  great  importance  forced  themselves 
to  the  front,  while  political  affairs  within  the  states  com- 
manded very  little  public  interest.  These  national  issues 
ranged  the  people  into  two  great  political  parties.  As  it 
was  not  possible  without  a  tremendous  expenditure  of  energy 
to  create  and  keep  in  operation  two  separate  sets  of  party 
divisions,  one  based  on  momentous  national  issues  and  the 
other  on  commonplace  questions  of  state  government,  the 
natural  result  ensued,  namely,  that  the  greater  division 
engulfed  the  smaller.  The  national  parties  during  the 
opening  years  of  the  nineteenth  century  did  not  wipe  out  the 
state  organizations,  but  merely  swallowed  them.1  This 
situation,  once  created,  has  not  proved  easy  to  change. 
There  have  been  times  during  the  past  hundred  years  when 
local  issues  in  various  states  have  taken  the  uppermost  place 
in  the  minds  of  the  electorate  ;  but  no  permanent  shattering 
of  the  established  party  lines  has  resulted.  Party  divisions, 
when  once  established,  are  hard  to  realign. 

It  is  tacitly  assumed  that  men  select  their  party  affiliations 
of  their  own  free  will  and  accord.  As  a  rule  they  do  nothing 

1  For  the  history  of  party  rivalries  in  this  period  see  Henry  Jones  Ford, 
The  Rise  and  Growth  of  American  Politics  (N.  Y.,  1911). 


STATE  PARTIES  AND  PRACTICAL  POLITICS        475 

of  the  sort.     The  great  majority,  as  has  already  been  said,  Thein- 
inherit  their  party  allegiance  or  have  it  determined  for  them  Heredity^ 
by  their  early  environment.     The  most  important  factor  in  on  party 
determining  whether  a  young  man  on  becoming  a  voter  will  affillatlons- 
identify  himself  with  one  party  or  another  is  the  political 
allegiance  of  his  parents.     Probably  ninety  per  cent  of  the 
young  men  who  reach  voting  age  every  year  in  the  United 
States  take  their  political  beliefs,  as  they  take  their  religion, 
in  accordance  with  the  influence,  of  parentage  and  environ- 
ment.1    Hence  a  state  may  remain  overwhelmingly  in  the 
control  of  one  political  party  through  successive  generations 
although  the  issues  have  changed  again  and  again.     Party 
lines  may  be  originally  determined  by  issues ;  but  they  are 
perpetuated  by  inheritance. 

Not  only  are  party  lines  identical  in  all  the  states,  but  Organi- 
the  frame  of  party  organization  and  the  methods  of  party  l^™°* 
activity  are  much  the  same  everywhere.     The  central  organ  parties : 
of  the  party  in  the  state  is  a  state  committee.     This  is  L  The 

state 

made  up  of  committeemen  chosen  directly  or  indirectly  committee, 
by  the  party  voters  in  the  various  districts  of  the  state,  one 
or  more  from  each  district.  The  districts  used  for  this  pur- 
pose vary  from  state  to  state,  and  indeed  different  parties 
within  the  same  state  may  not  use  the  same  districts  for 
the  selection  of  committeemen. 

In  New  York,  for  example,  the  Republican  state  central  («)  in  New 
committee  is  made  up  of  one  delegate  chosen  to  represent 
each  of  the  forty-three  congressional  districts  of  the  state.2 

1  This  statement  is  not  based  on  mere  conjecture.     Each  year  for 
many  years  I  have  taken  a  poll  of  my  classes  at  Harvard  in  order  to 
ascertain  what  proportion  of  the  students  intend  to  affiliate  with  the  same 
political  party  as  their  parents.     Save  for  a  temporary  lapse  during  the 
Progressive  schism  of    1912-1915  the  proportion   has  uniformly  proved 
to  be  90  %  or  more.     These  young  men,  all  of  them  nearing  the  age  at 
which  they  will  become  voters,  have  been  drawn  from  every  part  of  the 
country,  from  every  social  class,  and  from  all  the  political  parties.     The 
disposition  to  political  independence  is  probably  more  marked  among 
college  men  than  it  is  throughout  the  country  at  large,  so  that  the  influence 
of  heredity  upon  political  allegiance  would  in  all  probability  prove  to  be 
greater  there  if  it  could  be  accurately  measured.     In  my  inquiries,  which 
have  included  many  hundreds  of  young  men,  I  have  been  able  to  find  no 
greater  departure  from  parental  influence  in  politics  than  in  religion. 

2  These  forty-three  select  at  large  one  additional  committeeman  to 
represent  the  colored  voters  of  the  state. 


476      THE  GOVERNMENT  OF  THE  UNITED  STATES 


(6)    In 
Massa- 
chusetts 
and  other 
states. 


Functions 
of  the 
state 
committee. 


The  Democratic  state  committee,  on  the  other  hand,  con- 
sists of  fifty-one  members,  one  from  each  senatorial  district. 
In  both  cases  the  committeemen  are  chosen,  not  by  party 
voters,  but  by  the  delegates  sent  by  the  district  to  the  party 
convention,  a  body  which  will  be  described  presently. 

In  Massachusetts  the  senatorial  district  is  used  by  both 
political  parties  in  the  election  of  state  committeemen. 
Here,  however,  the  choice  is  not  made  by  delegates  to  the 
convention  but  by  the  party  voters  at  the  polls.  Other 
states  use  still  different  methods,  but  in  general  the  com- 
mittee is  selected  to  represent  districts,  with  possibly  some 
committeemen  at  large,  and  its  members  are  either  chosen 
by  the  state  convention  or  elected  by  the  party  voters. 
Each  party,  it  need  scarcely  be  added,  has  its  own  state 
committee. 

What  are  the  functions  of  these  state  committees?  In 
general  they  see  that  the  local  party  organizations  both 
in  the  cities  and  in  the  rural  districts  are  kept  alive,  and 
that  they  attend  to  such  matters  as  the  registration  of  the 
party  voters  and  the  proper  distribution  of  local  patronage. 
In  a  word  it  is  the  function  of  a  state  committee  to  keep  the 
whole  party  machine  in  repair  and  in  running  order. 
Between  election  campaigns  the  committee  does  not  meet 
very  often ;  its  functions  during  these  periods  of  political 
quiescence  are  exercised  usually  by  the  committee's  chairman, 
or  secretary,  or  both.  The  only  questions  likely  to  be  of 
interest  to  the  individual  members  of  the  committee  in  this 
interval  are  those  which  relate  to  appointments.  When  the 
time  for  an  election  draws  near,  however,  the  committee 
limbers  up  and  makes  the  party's  campaign  plans,  often 
determining  when  and  where  the  party  convention  shall  be 
held,  and  how  funds  shall  be  raised.  Sometimes  it  quietly 
hand-picks  its  own  slate  of  candidates.  It  matters  little 
whether  the  actual  nominations  are  to  be  made  by  the 
convention  or  by  means  of  a  primary  election;  in  either 
case  the  state  committee  is  likely  to  make  the  preliminary 
selections,  and  under  normal  conditions  its  action  will  be 
ratified.  During  the  campaign  the  committee  serves  as  a 
general  board  of  strategy,  arranging  for  the  chief  speakers, 
soliciting  contributions  and  apportioning  the  available 


STATE  PARTIES  AND  PRACTICAL  POLITICS        477 

money  for  expenses,  preparing  and  issuing  the  campaign 
literature,  and  so  on.     Most  of  the  actual  work  is  done  by  the\  * 
chairman  or  the  secretary  of  the  committee  in  cooperation  | 
with  the  local  party  committees  all  over  the  state,  but  the! 
committee  itself  usually  decides  all  questions  of  campaign 
policy.1 

While  the  chairman  of  the  state  committee  is  nominally  its  chair- 
the  head  of  his  party  organization  in  the  state,  he  is  not  man> 
always  the  real  leader  or  party  boss.  He  may  be  such,  it  is 
true,  but  more  often  he  is  a  pliant  figurehead  who  is  given 
the  chairmanship  at  the  behest  of  someone  else  who  desires 
to  exercise  the  real  authority  without  having  the  spotlight 
of  publicity  thrown  upon  him.  The  secretary  is  usually  a 
paid  official,  an  energetic  worker  with  a  capacity  for  handling 
details.  The  state  committee  also  has  its  treasurer,  upon 
whom  devolves  the  duty  of  helping  to  raise  the  campaign 
funds,  paying  the  expenses,  and  finding  some  way  to  liquidate 
the  inevitable  deficit  after  the  election  is  over.  This  last 
problem,  it  need  scarcely  be  added,  is  less  difficult  when  the 
party  wins  than  when  it  loses.  A  victorious  party,  with 
preferment  and  patronage  in  its  gift,  rarely  lacks  good  angels. 

Mention  has  been  made  of  the  party  convention.  Ordi-  The  state 
narily  each  party  holds  a  convention  some  time  prior  to  the  Convention 
state  election.  The  members  represent  the  party  voters 
in  the  various  municipalities  or  districts  of  the  state.  They 
may  be  chosen  by  districts,  by  towns,  by  wards,  or  by  some 
other  type  of  local  unit.  The  selection,  however,  may  be 
made  directly  by  the  party  voters,  as  in  Massachusetts,  or 
in  an  indirect  manner,  as  in  New  York.  Ordinarily  a  party 
convention  will  contain  a  hundred  or  more  delegates. 
When,  the  convention  meets,  it  chooses  its  own  chairman  and 
proceeds  to  business.  Each  party,  of  course,  has  its  own 
separate  convention. 

Until  a  decade  or  two  ago,  the  party  convention  nominated \  its  work, 
all  the  candidates,  drew  up  the  party  platform,  and  eveni 
selected  the  state  committee.     The  nominating  function  it 
has  now  lost  in  many  of  the  states.     Where  the  primary 

1  This  topic  and  indeed  all  the  other  matters  outlined  in  the  present 
chapter  are  much  more  fully  dealt  with  in  P.  Orman  Ray's  Introduction 
to  Political  Parties  and  Practical  Politics  (2d  ed.,  N.  Y.,  1917). 


478      THE  GOVERNMENT  OF  THE   UNITED  STATES 


The  party 
platform 
in  state 
campaigns. 


system  of  nomination  is  in  vogue  the  convention  no  longer 
selects  the  candidates  but  leaves  this  work  to  the  party 
voters.  The  convention's  chief  work  is  to  draw  up  the  party 
platform.  This  is  usually  done  by  a  committee  appointed 
for  the  purpose.  As  a  matter  of  practice,  however,  some 
of  the  party  leaders  usually  agree  upon  the  main  "planks" 
of  the  platform  beforehand,  so  that  the  work  of  the  committee 
is  merely  that  of  putting  them  together  for  adoption  by  the 
convention. 

Each  of  the  parties  issues  a  state  platform  at  the  outset 
of  the  campaign.  These  platforms  purport  to  be  declara- 
tions of  what  the  party  stands  for  in  the  coming  state 
election,  but  they  usually  contain  expressions  of  the  party's 
attitude  on  national  questions  as  well.  Like  the  national 
party  platforms  they  are  sometimes  evasive  and  tend  to 
make  a  specialty  of  platitudes.  A  portion  of  the  platform 
is  always  devoted  to  a  criticism  of  what  the  opposing  party 
has  done  or  has  failed  to  do.  Then  come  intimations  of  how 
the  party  itself  proposes  to  hasten  the  millennium.  Inter- 
woven with  these  things,  occasionally,  are  expressions  of 
opinion  upon  various  matters  of  foreign  policy,  with  which 
the  state  has  no  concern.  These  declarations  are  of  course 
quite  innocuous  and  merely  inserted  to  humor  some  section 
of  the  voters.  That  is  why  the  New  York  party  platforms 
are  solicitous  for  the  Jews  in  Russia,  while  those  of  Massa- 
chusetts contain  a  perennial  declaration  in  favor  of  Irish 
home  rule.  On  some  points,  of  course,  the  pledges  of  a 
party  platform  are  specific,  but  the  more  definite  the  pro- 
visions the  greater  are  the  chances  of  future  embarrassment 
in  case  the  party  changes  front. 

The  local  The  work  of  both  the  state  central  committee  and  the 
committees  Party  convention  is  of  a  general  nature.  These  bodies  plan 
and  supervise.  The  real  burden  and  heat  of  the  day  are 
borne  by  the  local  committees  and  the  ancillary  organizations 
which  exist  in  every  senatorial  or  assembly  district,  in 
every  county,  town,  or  township,  in  every  city,  and  indeed 
in  every  ward  of  a  city.  Where  the  party  is  thoroughly 
organized  this  committee  system  extends  even  to  the  voting 
precincts,  the  smallest  electoral  unit  of  all.  It  is  to  these 
committees  that  the  party  leaders  look  for  the  proper 


STATE  PARTIES  AND  PRACTICAL  POLITICS        479 

registration  of  the  voters,  the  canvassing,  the  holding  of  Their 
local  rallies,  the  providing  of  conveyances  for  voters  on  work> 
election  day,  and  the  mustering  of  a  full  party  vote  at  the 
polls.  These  committees  are  chosen  in  all  sorts  of  ways, 
but  their  functions  are  much  the  same  everywhere.  Their 
members  are  active  party  workers.  The  precinct  or  ward 
committee  is  no  place  for  slackers.  State  conventions  and 
committees  may  provide  the  platform,  the  candidates,  and  the 
funds,  but  the  active  work  among  the  voters  must  be  done 
by  local  organizations.  It  is  upon  them,  accordingly,  that 
victory  in  a  close  campaign  usually  depends.  The  proof i 
of  good  state  leadership  is  to  be  found  in  the  efficiency) 
of  these  local  bodies. 

In  addition  to    the  local  committees  there  are  various  Ancillary 
ancillary  or  independent  party  associations,  particularly  in  J^gani- 
the  cities.     These  usually  take  the  name  of  leagues  or  clubs,  zations, 
and  their  main  purpose  is  political  although  they  may  have 
some  social  activities  as  well,   especially  in  the  intervals 
between  election  campaigns.     Groups  of  voters  belonging 
to  a  party  organize  themselves  together,  secure  a  hall  or 
other  headquarters  and  make  it  their  place  of  rendezvous. 
Usually  there  is  a  recognized  leader  as  the  moving  spirit 
of  the  organization,  and  the  members  make  up  his  personal 
following. 

The  reasons  for  the  existence  of  such  organizations  are  Reasons 
in  part  practical  and  in  part  psychological.  Not  all  the  existenc 
party  workers  can  be  given  places  on  the  local  committees,  practical 
The  clubs  or  leagues  afford  opportunities  for  many  others 
who  are  ready  to  help  in  an  unofficial  capacity.  Moreover, 
these  associations  can  do  things  which  a  regular  party  com- 
mittee might  hesitate  to  do.  The  activities  and  expendi- 
tures of  the  regular  committees  must  be  conducted  strictly 
according  to  law,  but  the  clubs  are  not  so  closely  hampered 
in  their  operations.  The  party  may  welcome  their  help,  but 
it  can  also  disclaim  responsibility  for  the  acts  of  voluntary 
and  non-official  groups  over  which  its  leaders  have  theoreti- 
cally no  control.  The  party's  war  chest  often  contributes 
to  the  expenses  of  these  clubs,  however,  and  they  are  an 
integral  part  of  the  political  machine.  These  are  practical 
considerations.  As  a  matter  of  psychology,  moreover,  men 


480      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 
machine. 


A  purely 
American 
institution. 


Why  it  has 
evolved  in 
the  United 
States. 

1.    Fre- 
quency of 
elections. 


like  to  be  among  their  fellows  when  there  is  excitement  and 
particularly  when  the  spirit  of  victory  is  in  the  air.  Im- 
personal loyalty  to  a  political  party  does  not  satisfy  the 
more  ardent  partisans,  and  the  clubs  provide  the  opportunity 
for  making  this  allegiance  more  personal. 

The  active  workers  in  these  conventions,  central  and 
local  committees,  clubs/  the  leaders,  and  bosses,  together 
make  up  the  party  machine.  It  is  appropriately  so  called 
because  its  various  parts  are  smoothly  geared  together,  and 
possibly  also  because  it  constantly  needs  financial  lubrication. 

Political  machines  exist  in  America  only.1  There  are  party 
organizations  in  other  countries,  but  they  are  not  called 
machines  and  do  not  deserve  the  name,  for  they  possess  no 
such  smooth  articulation  nor  are  they  held  so  well  under 
central  control  as  are  the  political  machines  of  the  American 
states.  Yet  the  development  of  the  machine  in  America 
is  not  an  accident.  Various  conditions  and  circumstances 
have  contributed  to  its  upbuilding. 

Among  these  causes  one  of  the  most  important  is  the 
frequency  of  elections,  due  to  the  fact  that  so  many  officials 
of  state  government  are  elective  and  hold  their  posts  for 
short  terms.  In  no  other  country  do  elections  come  so  often. 
No  sooner  do  the  echoes  of  one  campaign  die  away  than  the 
preliminaries  begin  to  be  arranged  for  the  next.  The  result 
is  that  those  who  look  after  the  party's  interests  have  time 
for  little  else.  A  fraternity  of  professional  politicians  is  the 
logical  outcome.  The  professional  politician  is  more  in 
evidence  among  Americans  than  among  Europeans  for  the 
simple  reason  that  Americans  provide  far  more  for  him  to  do. 
If  political  campaigns  were  four  or  six  years  apart,  as  they 

1  The  terms  "party  organization"  and  "party  machine"  are  often 
used  synonymously,  but  strictly  speaking  the  organization  includes  all 
the  members  of  the  party  while  the  machine  includes  the  active  workers 
only.  A  machine  exists,  therefore,  only  when  the  organization  is  highly 
efficient  and  has  a  considerable  number  of  well-disciplined  workers.  The 
term  "  machine  "  is  also  used,  sometimes,  to  designate  the  personal  organi- 
zation of  a  particular  leader  within  the  party.  The  machine  may  thus 
be  the  party  organization  as  a  whole,  or  only  a  part  of  it,  or  it  may  have 
no  direct  connection  with  the  regular  organization  at  all.  It  can  be 
denned  perhaps  as  a  thoroughly  organized  hierarchy  of  party  workers 
supporting  either  a  leader  or  a  cause.  On  its  evolution  and  methods,  see 
Samuel  P.  Orth,  The  Boss  and  the  Machine  (New  Haven,  1919). 


STATE  PARTIES  AND  PRACTICAL  POLITICS        481 

are  on  the  other  side  of  the  Atlantic,  it  would  not  be  so  easy 
to  keep  party  organizations  in  full  working  trim  from 
election  to  election.  But  when  voters  are  called  to  the  polls 
at  least  every  year  for  some  form  of  election  and  sometimes 
(if  the  primary  be  included)  even  twice  or  three  times  a  year, 
the  political  leaders  are  never  accorded  a  long  vacation.  The 
American  political  machine  would  rust  in  other  countries.  I 

The  vice  of  patronage  has  also  had  its  part  in  creating  2.  The 
the. machine.     Patronage  is  of  two  sorts,  offices  and  favors.  J^"8^' 
The  distribution  of  offices  under  the  spoils  system,  by  which  patronage, 
party  heelers  are  rewarded  with  lucrative  appointments,  has 
been  a  natural  incentive  to  political  diligence.     State  and 
local  committeemen,  organizers  of  clubs  and  rallies,  and 
those  who  pull  door-bells  as  canvassers,  do  not  give  days  its  various 
and  weeks  to  their  work  from  motives  of  pure  patriotism.  forms' 
They  are,  for  the  most  part,  seekers  after  the  loaves  and 
fishes  which  they  hope  to  see  distributed  when  the  time 
comes.     The   spoils   system   has   provided   one   means   of 
rewarding  them. 

But  there  is  another  form  of  patronage,  and  although  it 
has  had  less  prominence  in  public  discussion  it  is  even  more 
influential  in  its  contribution  to  the  vitality  of  the  machine. 
This  form  of  patronage  includes  the  controlling  of  legislation 
so  that  party  leaders  or  their  friends  may  be  financially 
benefited.  It  includes  also  the  awarding  of  contracts  for 
public  works  and  the  bestowal  of  favors  in  a  multitude  of 
other  ways.  It  is  not  from  those  who  aspire  to  places  on 
the  public  payroll  that  all  the  money  which  keeps  the  ma- 
chine in  operation  is  usually  obtained.  It  comes  from 
public  service  corporations,  or  if  corporations  are  prohibited 
by  law  from  contributing  to  party  funds,  it  is  supplied  by 
individuals  who  are  known  to  be  in  touch  with  them.  It 
comes  from  contractors,  from  those  who  have  supplies 
which  they  desire  at  some  favorable  opportunity  to  sell  to 
the  state  or  the  city,  from  the  liquor  dealers  who  seek  to 
fortify  their  trade  against  hostile  legislation,  and  from  a 
variety  of  other  sources  where  the  quest  for  public  favors 
is  the  mainspring  of  private  generpsity.  The  national  party 
organizations  derive  a  goodly  proportion  of  their  funds  in 
small  or  moderate  contributions  from  the  rank  and  file  of  the 
2i 


482      THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.   Other 
factors 
which  have 
helped  the 
growth  of 
political 
machines. 


America's 
most  con- 
spicuous 
machine : 
Tammany 
Hall. 


voters ;  but  the  state  organizations  secure  relatively  less 
from  that  source.  The  machine,  in  a  word,  flourishes 
because  the  system  of  practical  politics  which  exists  in  most 
of  the  states  provides  the  sinews  of  war  in  the  form  of 
patronage.  Civil  service  reform  has  done  something  to 
minimize  this  evil,  and  strict  laws  relating  to  the  competitive 
awarding  of  contracts  have  also  helped  in  some  measure. 
Yet  valiant  party  service  and  free-handed  contributions  to 
the  party  chest  continue  to  be  recognized  as  the  surest 
passports  to  official  favor. 

Other  factors  have  also,  no  doubt,  contributed  to  the 
evolution  of  political  machines  in  America.  The  presence 
of  newly  naturalized  citizens  in  large  numbers,  particularly 
in  some  of  the  eastern  states,  has  been  an  incentive  to 
thorough  organization.  Assiduous  party  propaganda  counts 
for  .much  with  these  voters  who  have  not,  like  the  native- 
born,  inherited  a  predilection  towards  one  or  other  of  the 
regular  parties.  The  long  ballot  with  its  party  columns 
and  its  consequent  premium  on  voting  a  straight  ticket  has 
also  played  into  the  hands  of  the  machine.  The  apathy 
and  docility  of  the  rank  and  file  of  the  voters,  which  is 
probably  more  pronounced  in  the  United  States  than  in 
most  other  countries,  may  also  be  a  contributing  factor.  The 
political  machine  exists  because  conditions  of  environment 
'  have  been  favorable  to  it. 

By  common  consent  the  most  efficient  party  machine  in 
the  country  is  the  organization  known  as  Tammany  Hall.1 
It  is  the  local  organization  of  the  Democratic  party  for 
New  York  County  (which  includes  only  a  portion  of  New 
York  City) ;  but  it  exercises  a  considerable  influence  upon 
the  party's  organization  in  New  York  state  as  a  whole. 
Originating  in  the  eighteenth  century  as  a  benevolent  and 
fraternal  association,  it  was  first  known  as  the  Society  of 
St.  Tammany.  Soon,  however,  the  organization  became 
strongly  partisan  and  anti-Federalist.  Aaron  Burr  was  its 
first  prominent  leader,  and  he  managed  to  make  it  a  tower 

1  This  is,  of  course,  the  name  of  the  headquarters ;  but  it  is  popularly 
used  to  personify  the  organization  itself.  A  full  account  of  the  organi- 
zation may  be  found  in  Gustavus  Myers,  History  of  Tammany  Hall  (2d 
ed.,  N.  Y.,  1917). 


STATE  PARTIES  AND  PRACTICAL  POLITICS        483 

of  strength  to  the  Republican  party  of  his  day.     When  the  its  origin 
old  Republican  party  went  to  pieces  and  the  Jacksonian 
Democrats  obtained  their  long  lease  of  power,  Tammany 
became  a  Democratic-Republican  organization  and  it  still 
bears  this  official  title,  although  it  has  of  course  no  affiliations 
with  the  Republican  party  of  to-day.     It  has  become  so 
famous  the  world  over  and  is  so  conspicuous  for  its  machine-  its  present 
like  operations,  if  not  for  its  political  ideals,  that  a  sketch  8tructure- 
of  its  organization  and  methods  may  well  be  included  here. 

The  jurisdiction  of  Tammany  extends  over  the  thirty  i.  The 
entire    assembly    districts  and    one-half    assembly  district  *^J 
which  are  included  within  New  York  County.1     In  each  of  committees, 
these   assembly    districts    the    Democratic    voters    choose 
at  an  annual  primary  a  district  general   committee,  the 
membership  of  which  varies  according  to  the  number  of 
voters.     The  choice  is  made  by   election  precincts,   each 
precinct  choosing  its  quota  of  committeemen.     This  dis- 
trict general  committee  is  the  chief  party  organ  in  the 
assembly  district.2 

Its  chairman,  chosen  by  itself,  is  the  directing  figure  in  2.  The 
its  operations.  He  appoints  in  every  election  district  or 
precinct  a  district  captain  who  is  the  official  agent  of  the 
party  in  the  precinct  and  is  responsible  for  the  showing 
which  it  makes  on  election  day.  He  assigns  the  party 
workers  in  his  precinct  to  their  various  tasks,  as  canvassers, 
watchers  at  the  polls,  challengers,  or  messengers.  Each 
captain  receives  from  the  county  committee's  treasurer  a 
sum  of  money  to  cover  the  expenses  of  this  work,  but  is  not 
paid  for  his  own  services.  These  captains  form  the  staff 
which  carries  out  the  instructions  of  the  district  central 

1  These  are  the  districts  which  elect  assemblymen  to  the  state  legis- 
lature at  Albany. 

1  The  district  central  committee  appoints  from  outside  its  own  member- 
ship an  auxiliary  committee  to  assist  it  in  its  general  activities,  likewise 
several  sub-committees  from  among  its  own  members.  Each  district 
also  has  its  clubs,  usually  bearing  the  name  of  some  past  or  present  district 
leader.  These  clubs  maintain  their  headquarters  the  year  around. 
From  time  to  time  they  provide  smokers,  banquets,  picnics,  and  so  on  for 
members  and  their  friends.  At  Christmas  and  on  other  occasions  they 
also  make  gifts  of  food,  clothing,  shoes  or  fuel  to  the  poor  of  the  district. 
But  when  an  election  campaign  draws  near,  the  activities  of  these  clubs 
are  wholly  political. 


484      THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.   The 
district 
leader  or 
district 


4.    The 

county 

committee 

and  its 

executive 

committee. 


5.   The 

county 
leader  or 
boss  of 
Tammany. 


Why  he 
is  a  true 
boss. 


committee.  They  are  an  active  body  and  much  of  Tam- 
many's strength  depends  upon  their  work.1 

But  the  district  chairman,  who  appoints  these  captains, 
is  not  the  district  leader,  so-called.  The  latter,  who  is  also 
chosen  by  the  district  general  committee,  is  the  district's 
representative  on  the  executive  of  the  county  committee; 
in  addition  he  makes  the  various  recommendations  for 
appointments  to  office,  apportions  whatever  patronage 
may  be  allotted  to  his  district,  and  exercises  a  considerable 
influence  over  the  selection  of  the  party's  candidates.  In  the 
practical  aspects  of  political  activity  the  district  leader  is  a 
much  more  important  personage  than  the  district  chairman. 

For  the  whole  county  there  is  the  county  or  general 
committee  made  up  of  all  the  members  of  the  thirty  district 
central  committees  sitting  together.  On  paper  it  is  a  very 
large  body,  numbering  several  thousand  members;  but  as 
it  holds  no  regular  meetings  this  unwieldiness  is  no  obstacle. 
All  its  business  is  done  by  an  executive  committee  made  up 
of  the  thirty  district  leaders,  together  with  some  ex-officio 
members.2  This  committee  chooses  its  own  chairman ;  but 
he  is  npt  the  county  leader,  or  boss  of  Tammany  Hall. 
The  latter  is  informally  elected  by  the  high  lights  of  the 
party,  whether  district  leaders  or  not,  and  technically  is 
only  an  ordinary  member  of  the  executive  committee.  But 
he  is  by  general  acquiescence  the  dominating  figure  in  that 
body,  and  his  advice,  whether  on  matters  of  policy  or 
methods,  is  regularly  followed. 

The  head  of  Tammany  Hall  is  thus  a  party  boss  in  the 
true  sense  of  the  term,  a  man  who  exercises  large  political 
powers  without  holding  any  official  position  or  incurring  any 
official  responsibility.  Leader  and  boss  are  often  used  as 
interchangeable  words  in  the  vernacular  of  practical  politics, 
but  it  is  not  accurate  to  employ  them  in  that  way.  A 
leader  has  a  position  which  is  clearly  defined  by  law  or  by 
the  rules  of  the  organization.  He  has  definite  duties  and  a 

1  All  the  precinct  captains  in  each  assembly  district  meet  from  time 
to  time  to  discuss  plans  and  to  insure  thorough  cooperation  as  regards 
both  aims  and  methods. 

2  This  executive  committee  appoints  the  various  standing  committees 
which  also  act,  within  their  special  fields,  on  behalf  of  the  dormant  county 
committee. 


STATE  PARTIES  AND  PRACTICAL  POLITICS        485 

direct  responsibility  which  he  cannot   conceal.     His  acts  Bosses 
are  performed  in  the  open.     A  boss,  on  the  other  hand,  while  fj^ers 
he  may  be  a  party  official,  does  not  derive  his  power  from  distin- 
that  fact.     His  authority  comes  through  informal  and  un- 
defined  channels ;   he  uses  his  machine  for  personal  as  well 
as  party  ends ;   and  he  does  not  owe  any  real  responsibility 
to  the  rank  and  file  of  the  voters. 

In  methods  also,  as  well  as  in  responsibility,  leadership  2.  in 
and  bossism  are  different.  "The  difference  between  a  boss  methods* 
and  a  leader,"  as  Theodore  Roosevelt  once  remarked,  "is 
that  a  leader  leads  and  a  boss  drives.  The  difference  is  that 
a  leader  holds  his  place  by  firing  the  conscience  and  ap- 
pealing to  the  reason  of  his  followers,  while  a  boss  holds 
his  place  by  corrupt  and  underhand  manipulation.  The 
difference  is  that  a  leader  works  in  the  light  of  day  while  the 
boss  derives  the  greater  part  of  his  power  from  deeds  done 
under  cover  of  darkness."  Every  area  of  party  organi- 
zation has  its  leader  or  recognized  head  ;  but  not  every  such 
area  has  a  boss.  Where  it  has  both,  the  two  may  or  may 
not  be  the  same  person. 

Many  denunciations  have  been  showered  upon  bosses  and  The  po- 
bossism ;  but  both  are  logical  products  of  political  conditions  l^^m_ 
which  have  existed  in  most  American  states  and  cities  until  stances 
recent  years,  and  which  still  continue  in  some  of  them.  J^ve^en- 
Discipline  helps  to  win  elections  as  well  as  battles,  and  good  couraged 
discipline  cannot  be  maintained  except  by  lodging  vast  final 
powers  in  the  hands  of  a  shrewd,  active,  and  experienced 
commander-in-chief .     The  man  who  is  best  fitted  to  organize 
the  party  cohorts,  to  drive  them  forward  at  top  speed,  to  dole 
out  the  funds  where  they  will  do  most  good,  and  to  provide 
whatever  strategy  the  campaign  may  demand  is  not  always 
the  one  whom  the  party  cares  to  put  on  a  pedestal  as  its 
official  leader.     Far  better  it  is,  in  such   cases,  to  have 
someone  of  irreproachable  record  and  demeanor  in  the  post 
of  technical  leadership,  while  informally  leaving  the  real 
power  to  some  Warwick  behind  the  throne.     There  will  be 
bosses    in    American  politics  so  long    as    government  by 

1  Speech  at  the  New  York  State  Convention,  September,  1910,  quoted 
by  P.  Oman  Ray,  Political  Parties  and  Practical  Politics  (2d  ed.  N.  Y., 
1917),  pp.  456-457. 


486      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Where 

does 

bossism 

find  its 

most 

fertile 

soil? 


patronage,  the  spoils  system,  the  multiplicity  of  elective 
offices,  the  long  ballot,  the  frequency  of  polling,  the  lobby, 
the  policy  of  legislation  by  trade  and  bargaining,  the  gerry- 
mander, and  a  dozen  other  iniquities  combine  to  place  at 
a  disadvantage  the  leader  who  insists  upon  fair  and  open 
methods  of  electoral  combat. 

There  has  never  been  a  national  boss  in  the  United  States, 
at  any  rate,  not  since  Andrew  Jackson's  day,  and  the  chief 
reason  is  that  the  methods  of  national  organization  and 
political  campaigning  do  not  lend  themselves  readily  to 
bossism.  In  some  states,  for  the  same  reason,  there  are  no 
bosses.  In  others,  where  the  tone  of  politics  is  more  sordid, 
the  boss  is  a  well-established  institution.  Bossism  has  flour- 
ished particularly  in  the  large  cities,  where  party  methods 
have  sometimes  descended  to  the  lowest  plane  of  all.  The 
standards  of  political  morality,  in  short,  determine  whether 
leadership  or  bossism  shall  dominate  the  activities  of  parties. 
Qualities  A  successful  boss  must  be  possessed  of  personal  qualifi- 

musfhave  ca^ions.  He  must  be  firm  in  purpose,  aggressive,  and 
courageous.  He  must  not  be  arrogant  and  dictatorial  in 
dealing  with  his  followers,  but  patient,  tactful  and  abounding 
in  resource  when  there  are  difficulties  to  be  surmounted  or 
animosities  to  be  ironed  out.  He  must  be  a  shrewd  judge 
of  men,  able  to  detect  variations  in  the  pulse  of  public 
opinion,  and  never  caught  napping  when  opportunity  is 
before  his  eyes.  He  must  have  a  vigorous  physique, 
able  to  stand  hard  work  and  to  enjoy  it.  Habits  of  dissi- 
pation will  bring  a  boss  to  grief  in  short  order.  He  must 
have  a  zest  for  doing  favors,  thus  placing  voters  and  their 
friends  under  obligations  to  him.  His  motives  may  be  in 
all  cases  selfish  or  sordid,  but  that  matters  little.  In  time 
of  trouble  it  is  deeds  and  not  motives  that  count  with  those 
whom  the  boss  befriends.  Finally,  he  must  know  the  tricks 
of  his  trade  and  have  no  ingrowing  conscience  to  hamper  his 
freedom  in  applying  them.  Bosses  who  continue  in  power 
over  long  periods  are  for  the  most  part  men  whose  natural 
gifts  would  readily  bring  them  success  in  other  vocations. 
They  cling  to  politics  for  the  love  of  it,  and  very  few,  despite 
a  popular  impression  to  the  contrary,  make  money  out  of  it. 
The  cure  for  bossism  is  in  the  eradication  of  the  things 


STATE  PARTIES  AND  PRACTICAL  POLITICS        487 

which  have  brought  it  into  being.  The  reduction  in  the  The 
number  of  elective  offices,  the  use  of  the  short  ballot,  the 
extension  of  the  merit  system  to  all  subordinate  appoint-  rule, 
ments  and  to  all  promotions,  the  simplification  of  nominating 
and  election  machinery,  the  practice  of  requiring  all  cam- 
paign contributions  and  expenditures  to  be  made  public, 
the  placing  of  all  public  contracts  on  an  open-competition 
basis,  the  purchase  of  all  supplies  by  public  tender,  the 
extermination  of  lobbying  in  legislatures,  the  extension  of 
social  service  facilities  in  the  crowded  sections  of  large  cities, 
and  the  encouragement  of  civic  education  —  these  reforms 
have  helped  and  are  helping  to  rid  the  states  of  boss  politics. 
Such  riddance,  moreover,  is  in  the  highest  degree  desirable, 
for  no  political  system  can  be  really  democratic  so  long  as 
it  suffers  any  man  to  exercise  large  political  powers  without 
formal  authority  or  responsibility.  The  boss  system  trans- 
forms free  government  into  autocracy.  It  is  far-reaching 
in  its  ramifications  and  insidious  in  its  effects. 

A  clear  distinction  should  be  made,  however,  between  these  Ridding 
excrescences  upon  the  party  system  and  the  system  itself.  JJ6^^ 
Too  often  the  merits  of  party  organization  are  wholly  dis-  does  not 
regarded.     Its  lapses  are  made  the  theme  of  sermons  and  JJJ^*1^ 
editorials  which  advocate  the  ruthless  harrying  of  all  party  or  weak- 
organizations.     That  is  like  urging  the  abolition  of  bank  JJJJ^J 
notes  because  they  are  sometimes  counterfeited,  or  of  news-  system, 
papers  because  some  of  them  print  libels.     The  founders  of 
the  nation  had  an  aversion  to  party  politics,  as  well  they 
might,  for  party  struggles  were  associated  in  their  imagina- 
tion with  the  old  factional  conflicts  of  the  Greek  and  Roman 
republics,  of  Guelphs  and  Ghibellines  in  the  Middle  Ages, 
and  of  Cavaliers  and  Roundheads  in  seventeenth  century 
England.     These  were  party  struggles  in  which  bloodshed, 
conspiracy  and  banishment  figured  as  part  of  the  day's  work. 
But  the  history  of  nations  during  the  last  hundred  years 
has  shown  that  party   contests   can  be   conducted  fairly, 
on  clear-cut  issues,  and  without  personal  malice.     It  has 
proved,  moreover,  that  real  democracy  can  nowhere  exist 
without  party  organization.     These  lessons,   as  President 
Lowell  has  said,  represent  the  greatest  single  contribution 
of  the  nineteenth  century  to  the  art  of  free  government. 


CHAPTER  XXXIV 


Relation 
of  the 
state  to 
the  federal 
courts. 


Early 
history 
of  state 
courts. 


THE   STATE   COURTS 

IN  addition  to  the  federal  courts  already  described,  every 
state  of  the  Union  has  a  system  of  state  courts  established 
under  the  provisions  of  its  own  constitution  and  laws. 
Between  these  state  courts  and  the  federal  courts  there  are 
many  marked  similarities  of  organization  and  procedure,  but 
two  essential  differences  are  to  be  noted.  One  is  that  in 
most  of  the  states  the  judges  are  elected  by  the  people, 
whereas  there  are  no  elective  judges  in  any  federal  courts. 
The  other  difference  has  to  do  with  the  range  of  jurisdiction 
possessed  by  the  two  sets  of  tribunals.  The  matters  with 
which  the  federal  courts  may  deal  are  explicitly  denned  in 
the  constitution  of  the  United  States.  The  federal  courts 
possess  such  branches  of  jurisdiction  as  are  there  enumerated, 
and  no  more.  The  state  courts,  on  the  other  hand,  are 
vested  with  all  remaining  judicial  authority.  The  result  is 
that  the  state  courts  exercise  authority  over  a  far  wider 
range,  and  handle  a  far  larger  proportion  of  the  total  litiga- 
tion of  the  country,  than  do  the  federal  courts. 

The  state  courts,  in  their  organization  and  procedure,  are 
an  inheritance  from  the  colonial  period,  but  their  evolution 
has  been  considerably  influenced  by  the  principle  of  separa- 
tion of  powers.  The  administration  of  justice  in  the  colonies 
was  not  always  kept  distinct  from  the  making  and  the 
execution  of  the  laws.  The  governor  and  his  advisers  some- 
times served  as  the  supreme  court  of  the  colony.  After  the 
winning  of  independence  the  various  colonial  courts  were 
transformed  into  state  tribunals  without  great  alteration,  and 
it  was  not  until  a  half  century  after  the  Revolution  that 
radical  departures  from  the  traditional  English  forms  of 
organization  began. 

488 


THE  STATE  COURTS  489 

These  changes,  which  involved  more  particularly  a  Their 
democratization  of  the  courts,  were  due  to  the  influence 
of  the  new  states,  particularly  during  the  Jacksonian  era,  during 
They  were  part  and  parcel  of  the  frontier  influence  upon 
American  government  during  the  second  quarter  of  the  century, 
nineteenth  century.  Pioneer  communities  want  certainty, 
promptness,  simplicity,  cheapness,  and  a  certain  pro- 
pinquity to  popular  sentiment  in  the  administration  of 
justice.  These  needs  directly  controlled  the  development 
of  judicial  institutions  in  the  pioneer  states  and  indirectly 
affected  judicial  institutions  in  all  the  states.1  They  led  to 
the  supplanting  of  appointive  by  elective  judges,  the  estab- 
lishing of  regular  local  courts  in  place  of  circuit  tribunals 
which  came  only  at  intervals  to  each  locality,  and  the  simpli- 
fication of  procedure.  . 

This  frontier  influence  was  naturally  least  effective  in  the 
older  states,  particularly  in  New  England,  where  it  was  not 
felt  to  any  appreciable  degree.     Other  currents  and  cross- 
currents of  judicial  reorganization  have  also  surged  from 
time  to  time  during  the  past  fifty  years,  but  not  with  equal 
strength  in  all  the  states.     The  several  states  have  developed  The  ad- 
differences  in  the  character  and  distribution  of  their  popula-  j^8^^ 
tions,  likewise  in  the  complexity  of  the  problems  with  which  courts 
their  courts  havjs  to  deal.     Some  have  become  great  indus- 
trial  conglomerations,  with  the  need  for  a  greater  refinement  needs, 
of  jurisprudence,  for  more  learned  and  capable  judges,  and 
for  a  higher  degree  of  specialization  in   the  structure  of 
their  courts.     They  have  developed  their  judicial  systems 
accordingly.     Others   remain   agricultural   areas,   with  the 
relative  simplicity  of  rjiral  life,  and  hence  have  no  such  need 
for  so  high  a  degree  of  expertness  or  professionalism  in  their 
judiciary.     They  can  and  do  proceed  upon  the  principle  that 
every  man  is  competent  to  be  his  own  lawyer  and  every 
lawyer  fit  to  be  a  judge,  a  doctrine  which  would  soon  bring 
chaos  in  states  where  legal  relations  are  more  intricate. 

Hence  it  is  that  no  two  states  have  judicial  systems 
exactly  alike  in  organization  or  in  procedure.  Each  has 
adapted  its  method  of  selecting  judges,  its  rules  of  procedure, 

1  A.  N.  Holcombe,  State  Government  in  the  United  States  (N.  Y., 
1916),  p.  347. 


490      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Present 
variation  in 
organi- 
zation 
and  pro- 
cedure 
of  state 
courts. 

The 

unifying 

influences. 


Present 
organi- 
zation 
of  state 
courts : 
1.   The 
lowest 
courts. 


2.   The 

county 
courts. 


and  its  judicial  guarantees  to  what  it  assumes  to  be  its  own 
particular  requirements.  Yet  the  influence  of  the  federal 
bill  of  rights  upon  the  state  constitutions  has  been  such  that 
practically  all  the  latter  impose  upon  the  state  courts  the 
same  general  restrictions  for  the  protection  of  the  individual. 
The  organization  and  procedure  of  the  federal  courts  have 
also  had  a  powerful  influence  on  the  states.  Hence  the 
variation  in  essentials  among  the  judicial  systems  of  the 
various  states  is  not  so  great  as  it  undoubtedly  would  have 
been  without  these  two  unifying  factors. 

The  judiciary  in  every  state  now  comprises  at  least  three 
sets  of  courts,  sometimes  more.1  First  there  are  lacal  cpurts; 
presided  over  in  most  cases  by  justices  of  the  peace,  municipal 
justices,  or  similar  officers  who  are  chosen  by  popular  election 
in  all  but  a  very  few  states.  Everywhere  the  jurisdiction 
of  these  local  courts  is  limited  to  civil  and  criminal  cases 
of  relatively  minor  importance.  Frequently,  however,  the 
local  justice  conducts  the  preliminary  hearings  where  serious 
criminal  charges  have  been  made  and  determines  whether  or 
not  the  accused  shall  be  held  for  trial  by  a  higher  court. 
These  local  courts  are  not  provided  with  juries ;  their  pro- 
cedure is  of  a  summary  character,  and  their  work  usually 
leaves  much  room  for  improvement.  As  a  rule  the  justices 
of  the  peace  have  had  no  training  in  the  law  and  their 
administration  of  justice  is  proverbially  crude.  It  has  the 
saving  grace,  however,  that  if  the  justice  does  not  know  the 
law  he  knows  the  suitors,  and  his  decisions  are  probably  not 
far  wide  of  the  eternal  equities.  Nevertheless,  the  faulty 
work  of  these  lowest  courts  and  the  frequency  with  which 
one  can  successfully  appeal  from  their  decisions  have  con- 
tributed to  the  congestion  of  business  in  the  higher  state 
tribunals. 

Next  come  a  higher  range  of  courts,  frequently  known  as 
county  courts,  which  hear  appeals  from  the  decisions  of  the 
local  justices  and  which  also  have  original  jurisdiction  over 
a  considerable  range  of  cases,  both  civil  and  criminal.  In 
some  states  these  county  courts,  after  the  old  English  fashion, 
are  given  certain  functions  of  an  administrative  character, 

1  S.  E.  Baldwin,  The  American  Judiciary  (N.  Y.,  1908),  especially 
ch.  viii,  and  A.  N.  Holcombe,  State  Government  (N.  Y.,  1916),  ch.  xi. 


THE  STATE  COURTS  491 

including  the  supervision  of  county  prisons,  the  main- 
tenance of  county  roads,  and  various  matters  relating  to  poor 
relief.  A  county  court  is  presided  over  by  a  judge  who  is  in 
most  states  elected  by  popular  vote.  As  a  rule  provision  is 
made  for  trial  by  jury  in  these  courts.  In  some  states, 
especially  in  New  England,  there  are  no  regular  county 
courts  of  this  sort.  Their  place  is  taken  by  sessions  of  the 
Superior  Court  which  are  held  at  stated  times  in  each 
county. 

The  Superior  Court,  as  it  is  called  in  Massachusetts  and  and  other 
some  other  states,  or  District  Court  as  it  is  frequently  called  J^ate 
in  western  states,  has  authority  to  hear  cases  both  at  law  courts, 
and  in  equity  on  appeal  from  the  lower  tribunals  and  also 
has  practically  unlimited  jurisdiction  in  all  higher  civil  and 
criminal  cases.     Invariably  these  courts  are  empowered  to 
try  cases  with  the  assistance  of  a  jury.     Their  decisions  are 
oj^inarily  final  _sq_far  as  the  facts  of  a  controversy  are  con- 
cerned.    The  judges  of  these  intermediate  courts,  whether 
district  or  superior  tribunals,  are  in  most  states  elected  by 
popular  vote ;  in  a  few  states  they  are  appointed  by  the 
governor. 

Finally,  each  state  has  a  tribunal  of  last  resort,  usually  3.  The 
called  the  Supreme  Court,  but  sometimes  the  Court  of  Jj^8* 
Errors,  or  the  Court  of  Appeals.1  It  has  original  juris-  courts, 
diction  in  only  a  few  matters;  most  controversies  come  be- 
fore it  by  way  of  appeal  from  decisions  of  tribunals  below. 
Moreover,  it  deals,  in  the  main,  with  questions  of  law,  not 
questions  of  fact.  The  state  Supreme  Court  includes  from 
five  to  fifteen  judges  (the  number  is  fixed  by  law),  who  are 
either  elected  for  considerable  terms,  or  appointed  by  the 
governor,  or  in  rare  cases  chosen  by  the  legislature.  Every- 
where this  highest  state  court  has  the  last  word  in  litigation 
except  in  those  relatively  few  cases  where,  because  the 
controversy  raises  some  substantial  point  involving  the 
federal  constitution  or  the  federal  laws,  the  matter  may  be 
carried,  by  the  issue  of  a  writ  of  error,  to  the  Supreme  Court 
of  the  United  States. 

1  The  nomenclature  in  New  York  State  is  confusing.  The  Supreme 
Court  of  that  state  does  not  have  final  jurisdiction.  Final  authority  is 
given  to  the  Court  of  Appeals. 


492      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  su- 
premacy of 
the  state 
courts  in 
their  own 
sphere. 


Relative 
infre- 
quency 
of  federal 
inter- 
ference 
with 
state 
decisions. 


There  is  an  impression  in  the  popular  mind  that  all  state 
courts  are  subordinate  to  all  federal  courts,  that  the  lowest 
court  in  the  federal  system  is  superior  to  the  highest  state 
court.  To  students  of  government  it  should  be  superfluous 
to  mention  that  such  impression  is  altogether  wrong.  Each 
set  of  courts  is  independent,  each  has  its  own  field  of  juris- 
diction and  within  that  field  cannot  be  interfered  with  by 
the  other.  Most  cases  which  originate  in  the  state  courts 
reach  their  final  determination  there.  Not  one  in  a  thousand 
among  them  ever  reaches  the  federal  Supreme  Court. 

Whether  a  case  is  brought  before  a  state  or  a  federal  court 
in  the  first  instance  depends  wholly  upon  the  nature  of  the 
case  itself.  If  it  concerns  matters  or  persons  within  state 
jurisdiction,  the  state  courts  handle  it ;  if  it  concerns  matters 
or  persons  within  federal  authority,  it  goes  before  the  federal 
courts.  If  the  suit  is  commenced  in  either,  and  in  the 
course  of  the  trial  it  becomes  apparent  that  it  should 
have  been  entered  in  the  other,  it  can  be  removed  to  the 
latter.  But  if  a  controversy  is  properly 'within  the  juris- 
diction of  the  state  courts  it  can  go  no  farther  than  the 
highest  state  tribunal  unless  the  Supreme  Court  of  the 
United  States  obtains  appellate  cognizance  of  it  by  writ  of 
error.  No  such  writ  of  error,  to  take  a  case  on  appeal  from 
the  highest  state  court  to  the  highest  federal  court,  will  be 
issued  "unless  it  appears  affirmatively  that  not  only  was  a 
federal  question  presented  for  decision  to  the  highest  court 
of  the  state  having  jurisdiction,  but  that  its  decision  was 
necessary  to  the  determination  of  the  cause,  and  that  it  was 
actually  decided,  or  that  the  judgment  as  rendered  could 
not  have  been  given  without  deciding  it."  In  the  vast 
majority  of  instances  this  condition,  which  is  the  essential 
of  appeals  to  the  federal  Supreme  Court,  cannot  be  met,  and 
there  is  consequently  no  chance  of  an  appeal. 

The  Supreme  Court  of  the  United  States  has  not  been 
free-handed  in  its  interference  with  the  decisions  of  the 
highest  state  tribunals.  It  has  repeatedly  declared  that  in 
controversies  affecting  the  interpretation  of  a  state  law  the 
decision  of  the  highest  court  in  that  state  is  ordinarily  to  be 
regarded  as  final  and  will  not  be  set  aside.  It  concedes, 

1  De  Saussure  vs.  Gaillard,  127  U.  S.  216. 


THE  STATE  COURTS  493 

therefore,  as  a  matter  of  deference  to  state  sovereignty,  that 
those  who  proceed  in  the  state  courts  must  accept  whatever 
interpretation  of  the  state  laws  these  tribunals  may  finally 
give.  When  the  highest  state  court,  moreover,  passes  upon 
any  question  as  to  whether  a  state  law  is  or  is  not  repugnant 
to  the  federal  constitution  and  decides  that  the  law  is  on  that 
ground  unconstitutional,  the  Supreme  Court  of  the  United 
States  has  not  been  empowered  until  within  the  last  few  years 
to  review  such  decision.  Now,  however,  the  Supreme  Court 
of  the  United  States  may  hear  appeals  concerning  the  con- 
stitutionality of  state  laws  in  relation  to  the  federal  constitu- 
tion, no  matter  what  the  decision  of  the  highest  state  court 
may  have  been.1  When  state  laws  are  declared  unconstitu- 
tional, however,  it  is  usually  by  the  state  courts  and  because 
of  their  repugnance  to  the  constitution  of  the  state,  not  to 
that  of  the  nation. 

In  addition  to  its  regular  tribunals  every  state  has  certain  Special 
courts  of  a  special  character.     Among  these  are  probate  or  court8' 
surrogate's  courts  for  the  settlement  of  questions  relating  to 
wills  and  inheritances,  although  in  some  states  there  are  no 
special  courts  for  these  matters,  the  work  being  done  by  the 
regular  county  courts.     In  a  few  states  there  is  a  tribunal 
known  as  the  Land  Court,  which  has  to  do  with  the  investi- 
gation and  registration  of  land  titles. 

In  nearly  all  the  state  courts  it  is  the  practice  to  select  The 
judges  in  one  of  two  ways,  by  election  or  by  appointment.  "k^  of 
Election  is  the  method  used  in  the  great  majority  of  the  judges, 
states,  that  is  to  say,  by  thirty-eight  states  in  all.     Of  the 
remaining  ten  states,  six  leave  the  selection  of  their  judges, 

1  The  Judiciary  Act  of  1789,  with  its  various  amendments,  gives  the 
Supreme  Court  of  the  United  States  authority  to  reexamine,  reverse,  or 
affirm  the  final  judgment  or  decree  of  any  highest  state  court :  (1)  wherever 
there  is  drawn  in  question  the  validity  of  a  statute  or  treaty  of  the  United 
States  and  where  the  decision  was  against  its  validity ;  (2)  wherever  the 
validity  of  a  state  law  is  attacked  as  repugnant  to  the  constitution, 
statutes,  or  treaties  of  the  United  States ;  and  (3)  wherever  there  is  drawn 
in  question  the  interpretation  of  any  clause  in  the  federal  constitution, 
or  of  any  federal  law  or  treaty,  and  where  the  decision  of  the  state  court 
has  been  adverse  to  the  claim  set  up  thereunder.  These  are  the  only  con- 
ditions under  which  the  Supreme  Court  of  the  United  States  can  review 
a  decision  of  the  highest  tribunal  in  any  state.  For  a  further  discussion 
of  this  matter  see  F.  N.  Judson,  The  Judiciary  and  the  People  (New 
Haven,  1913),  pp.  114-115  and  passim. 


494      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  terms 
of  judges. 


The 

system  of 
electing 
judges : 
its  ex- 
tension. 


so  far  as  the  higher  courts  are  concerned,  to  the  governor.1 
They  provide,  however,  various  requirements  as  to  the 
confirmation  of  those  whom  the  governor  may  appoint.  In 
four  states  the  judges  of  the  higher  courts  are  chosen  by  the 
legislature.2 

The  term  for  which  judges  are  chosen  varies  from  life  to 
a  few  years.  In  Massachusetts,  for  example,  judges  of  all 
courts,  whether  higher  or  lower,  are  appointed  by  the  governor 
with  the  consent  of  his  council  and  hold  office  until  they 
die  or  resign.  In  Pennsylvania  the  judges  of  the  Supreme 
Court  are  elected  by  the  people  for  twenty-one  years,  in 
New  York  for  fourteen  years,  and  in  Illinois  for  six  years. 
In  Vermont  they  are  chosen  by  the  legislature  for  two  years 
only.  Many  states  make  a  distinction  between  the  judges 
of  the  higher  and  the  lower  courts,  giving  the  former  longer 
terms. 

Much  may  be  said  both  for  and  against  the  practice  of 
choosing  judges  by  popular  election.  Before  the  Revolution 
the  judges  were  appointed  by  the  crown  through  the  governor 
in  all  the  colonies  except  in  Rhode  Island  and  Connecticut, 
where  they  were  chosen  by  the  assembly.  The  early  state 
constitutions  for  the  most  part  followed  this  latter  precedent 
and  intrusted  to  the  legislature  the  function  of  choosing  the 
judges,  although  in  some  cases  it  was  left  with  the  governor. 
In  only  one  of  the  original  thirteen  states,  Georgia,  were 
judges  chosen  by  popular  vote.3  This  elective  method  made 
no  considerable  progress  for  many  years  after  the  Union  was 
established,  but  the  Jacksonian  democracy  gave  it  great 
impetus  and  it  thereafter  continued  to  spread,  particularly 
through  the  new  states  of  the  West.  To-day  there  are  no 
appointive  judges  west  of  the  Alleghanies  except  in  the  single 
state  of  Mississippi.  In  only  five  states  outside  New  Eng- 
land are  the  judges  of  the  state  Supreme  Court  chosen  other- 
wise than  by  popular  election. 

The  reasons  which  dictated  resort  to  popular  election  of 
judges  were  both  sentimental  and  practical.  The  fixed 

1  Delaware,  New  Jersey,  Massachusetts,  New  Hampshire,  Maine,  and 
Mississippi. 

2  Rhode  Island,  Vermont,  South  Carolina,  and  Virginia. 

3  F.  N.  Judson  (The  Judiciary  and   the  People,  New  Haven,  1913,  p. 
160)  declares  that  none  of  the  states  had  elective  judges  in  1789. 


THE  STATE  COURTS  495 

notion  that  no  branch  of  the  government  should  exist  outside  Reasons 
the  realm  of  direct  popular  control  is  one  which  must  always  adV^ion 
be  reckoned  with  in  ultra-democratic  communities.     People  1   The 
are  apt  to  reason  that  they  should  directly  control  not  only  logic  of 
the  making  and  administration  of  their  own  laws  but  the  ^^er** 
interpretation  of  these  laws  as  well.     The  tide  of  popular  eignty. 
opinion  set  strongly  in  that  direction  during  the  middle 
period  of  American  constitutional  history  and  has  continued 
without  greatly  diminished  force  "down  to  the  present  day. 

More  practical  reasons  for  the  change  from  appointive  to  2.  Defects 
elective  judges  were  to  be  found  in  the  partisanship  and  ^j^18" 
chicanery  which  too  often  marked  the  selection  of  judges  by  selection, 
legislatures  in  the  early  part  of  the  nineteenth  century.     By 
dint  of  political  manipulation  and  appeals  to  party  allegiance 
men  of  doubtful  integrity  were  frequently  elevated  to  judicial 
positions.     Hence  the  demand  for  the  popular  election  of 
judges  was  in  part  a  protest  against  the  way  in  which  legis- 
latures were  abusing  their  trust,  just  as  in  latter  days  and 
for  much  the  same  reasons  public  opinion  insisted  upon  the 
popular  election  of  United  States  senators  in  place  of  their 
appointment  by  state  legislatures. 

Nor  does  the  plan  of  letting  the  governor  choose  the  judges  3.  Poor 
prove  to  be  free  from  serious  objection.     Judicial  appoint-  ^e^*" 
ments  made  under  that  plan  often  go   as  the  reward  of  often 
party   service    to    men  who    are    not    properly   qualified, 
Appointment  by  governors  has  not,  on  the  whole,  worked 
out  so  unsatisfactorily  as  selection  by  legislatures,  but  it 
does  not  to-day  commend  itself  to   many   of  the  states. 
Popular  election  has  obtained  the  upper  hand. 

But  in  actual  operation,  as  experience  proves,  the  people  How  the 
do  not  really  choose  their  judges.      How,  indeed,  can   a  efe^tiv^0 
body  of  a  hundred  thousand  voters  obtain  the  knowledge  judges 
necessary  to  insure  the  placing  of  legal  knowledge,  sound 
judgment,  and  integrity  on  the  state  bench?     The  answer 
is,  that  the  people  do  not  have  such  knowledge  and  do  not 
presume  to  have  it.     In  many  states  there  is  a  tradition  that 
a  judge,  when  once  elected,  shall  be  retained  in  office  so  long 
as  his  conduct  is  at  all  satisfactory.     This  means,  then,  that 
vacancies  on  the  bench  occur,  for  the  most  part,  only  when 
a  judge  dies  or  resigns.     When  vacancies  come  in  this  way, 


496      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  in- 
fluence of 
interim 
appoint- 
ments. 


Influence 
of  bar 
associa- 
tions 
and  of 
political 
leaders. 


Popular 
election 
of  judges 
almost 
always 
means 
de  facto 
appoint- 
ment. 


The  re- 
moval of 
judges : 
1.   by  im- 
peachment. 


the  governor  is  usually  given  the  right  to  make  an  appoint- 
ment until  the  next  election,  and  this  appointee  is  likely  at 
that  time  to  be  a  candidate  with  the  chances  much  in  his 
favor.  Many  elective  judges,  therefore,  really  owe  their 
election  to  a  governor's  temporary  appointment. 

If  it  happens,  on  the  other  hand,  that  a  judge  retires  upon 
the  expiry  of  his  elective  term,  the  choice  among  aspirants 
for  his  place  is  almost  invariably  made,  in  the  first  instance, 
either  by  the  prominent  lawyers  of  the  state  or  by  the 
political  leaders.  The  voters  merely  choose  as  between  rival 
candidates  thus  presented  to  them.  Whichever  way  they 
[decide  they  merely  approve  one  or  other  of  the  preliminary 
selections  made  by  the  leading  lawyers  or  politicians.  Other 
candidates,  supported  neither  by  the  bar  associations  nor  by 
political  parties,  have  ordinarily  no  chance  of  being  elected. 
Under  the  system  of  nominations  by  convention  the  political 
leaders  did  their  work  openly  and  with  a  certain  sense  of 
responsibility;  under  the  plan  of  nomination  by  direct 
primaries  they  merely  do  it  less  openly  and  without  respon- 
sibility. 

Wherever  judges  are  chosen  by  popular  election  there  is 
almost  always  a  de  facto  appointing  power.  Whether  the 
system  of  election  works  out  well  or  otherwise  depends  upon 
where  this  de  facto  power  resides  and  how  wisely  it  is  used. 
There  is  no  great  difference  in  the  quality  of  judges  obtained 
in  Massachusetts  by  governor's  appointment  and  in  Wis- 
consin by  popular  election.  This  is  because  the  lawyers, 
through  their  bar  associations,  have  a  considerable  influence 
in  both.1  The  system  of  elective  judges  works  best  where 
the  legal  fraternity  has  the  greatest  practical  weight  in  mak- 
ing the  preliminary  selections ;  it  works  badly  where  the 
nominations  are  dictated  by  the  political  leaders. 

Closely  connected  with  the  question  of  appointing  judges 
is  the  method  of  removing  them  from  the  bench.  Judges  of 
the  federal  courts  may  be  removed  in  one  way  only,  that  is, 
by  impeachment.  Judges  of  state  courts  may  be  removed 
by  impeachment  also,  but  some  of  the  states  provide  two 

1  There  is  an  illuminating  discussion  of  this  matter,  showing  the  relation 
between  de  jure  election  and  de  facto  appointment,  in  Bulletin  No.  IV  A, 
of  the  American  Judicature  Society. 


THE  STATE  COURTS  497 

other   methods  of   removal,    namely,   by   address,  or  by 
recall. 

Removal  by  impeachment  is  an  available  method  in  all 
the  states  without  exception.  The  process. involves  the  fil- 
ing of  charges  by  the  lower  chamber  and  a  trial  before  the 
upper  chamber  of  the  legislature.  Conviction  usually  re- 
quires a  two-thirds  vote.  Removals  have  frequently  been 
accomplished  in  this  way,  but  the  total  number  is  not 
large. 

Removal  "by_Mdress"  is  not  a  usual  method  of  ousting  2.  by 
a  state  judge  from  office  although  it  is  provided  for  in  several  address- 
states.  It  has  its  prototype  in  a  procedure  which  has  long 
existed  in  England  and  which  was  there  devised  as  a  means 
of  protecting  the  judges  against  arbitrary  removal  by  the 
crown.  As  established  in  various  American  states  it  permits 
the  governor  to  remove  a  judge  from  office  in  compliance 
with  an  "address"  or  formal  request  of  the  legislature.  As 
a  rule,  a  two-thirds  vote  of  both  Houses  of  the  legislature  is 
necessary,  but  not  always.  In  Massachusetts,  for  example, 
a  mere  majority  suffices.  It  is  not  ordinarily  required  that 
specific  charges  be  filed  or  that  anything  like  a  trial,  as  in  an 
impeachment,  shall  be  conducted ;  but  it  is  customary  to 
reduce  the  complaints  against  a  judge  to  written  form  and 
to  give  him  some  sort  of  hearing  thereon,  either  before  a 
committee  of  the  legislature  or  before  the  governor.  The 
governor,  moreover,  is  not  bound  to  act  in  response  to  an 
address  for  removal  unless  he  chooses  to  do  so.  There  is 
a  marked  difference,  accordingly,  between  a  removal  by 
impeachment  and  a  removal  by  address.  The  former  is  a 
judicial  proceeding  and  is  carried  out  with  due  regard  to  the 
forms  of  law  and  the  rights  of  the  accused.  The  latter  is 
an  ex  parte  legislative  process  with  the  final  decision  resting 
in  the  governor's  hands.  Another  difference  is  that  a  con-  A  , 
viction  by  impeachment  may  disqualify  from  office  for  the 
future,  whereas  a  removal  by  address  does  not. 

A  third  method  of  removing  judges  exists  in  a  few  states,  3>  by 
namely,  by  means  of  the  recall.1     This  device  is  elsewhere  recall, 
explained   with   respect   to   the   executive   and    legislative 
branches  of  state  government ;  its  machinery  and  workings 
1  Oregon,  California,  Arizona,  Colorado,  and  Nevada. 

2K 


498      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Reputed 
merits  and 
defects 
of  the 
recall  as 
applied 
to  the 
judiciary. 


The 

recall  of 
judicial 
decisions. 


are  much  the  same  when  applied  to  the  judiciary.1  A 
petition  signed  by  a  designated  number  of  voters  is  pre- 
sented asking  for  the  recall  of  a  judge  from  office.  The 
question  is  put  upon  the  ballot,  and  if  the  popular  verdict 
is  adverse,  the  judge  steps  down. 

The  reputed  merit  of  the  plan  is  that  it  serves  to  keep  the 
interpretation  and  enforcement  of  the  laws  in  harmony  with 
public  sentiment.  The  judge  sits  with  the  sword  of  Damo- 
cles over  his  head,  being  thus  reminded  that  he  is  the  servant 
and  not  the  master  of  the  people.  On  the  other  hand  the 
objections  commonly  urged  against  the  recall  of  adminis- 
trative officials  apply  with  even  greater  force  in  the  case  of 
judges.  The  courts  should  be  free  from  the  momentary 
onsets  of  prejudice  or  passion.  Courage  and  independence, 
freedom  from  the  taint  of  political  partiality,  are  essentials 
of  a  good  judiciary.  It  is  argued  that  the  recall  will  place 
a  premium  on  pusillanimity,  making  the  bench  no  longer  a 
rock  of  defence  against  the  abuse  of  political  power,  but  a 
reed  shaken  by  every  gust  of  sentiment  or  prejudice.  Much 
will  depend,  of  course,  upon  the  tradition  which  the  recall 
develops.  If  wisely  and  conservatively  used,  the  recall 
offers  no  greater  menace  to  the  independence  of  the  judges 
than  does  the  plan  of  removal  by  address.  The  latter 
might  easily  become  a  weapon  of  shameless  intimidation, 
but  has  nowhere  done  so.  Potential  dangers,  it  ought  to 
be  remembered,  are  often  not  realized  in  the  actual  prac- 
tice of  free  government. 

The  recall  of  judicial  decisions  has  been  adopted  in  one 
state  only,  Colorado.  When  the  Supreme  Court  of  that 
state  declares  any  law  to  be  unconstitutional,  a  stated 
number  of  voters  may  petition  to  have  a  popular  referendum 
on  the  question  of  enforcing  the  law  despite  the  court's 
decision.  The  popular  verdict,  whatever  it  is,  will  then 
prevail.  The  power  of  recalling  judicial  decisions,  it  should 
be  noted,  does  not  apply  to  all  judgments,  but  only  to  those 
which  deny  the  .constitutionality  of  laws.  The  arrangement 
merely  embodies  a  poor  method  of  doing  what  could  be 
quite  as  easily  accomplished  in  a  less  offensive  way,  namely, 
by  amending  the  state  constitution  so  as  to  bring  the  par- 
1  Below,  pp.  518-521. 


THE  STATE  COURTS  499 

ticular  law  within  bounds.  It  is  ordinarily  no  more  difficult 
to  amend  a  state  constitution  than  to  order  the  enforcement 
of  an  unconstitutional  law,  a  popular  majority  being  the 
chief  requirement  in  either  case. 

Many  state  laws  are  held  unconstitutional  because  they  A  proposal 
violate  the  provisions  of  the  national   constitution.     The  °u^_ular 
highest  state  courts  are  to  that  extent,  therefore,  guardians  cation, 
of  the  private  rights  which  are  guaranteed  by  that  doc- 
ument.    To   provide  that   decisions   of  this  sort  shall  be 
subject  to  recall  by  popular  vote  in  any  state  is  virtu- 
ally to  permit  the  local  annulment  of  the  national  consti- 
tution, thus  reviving  the  doctrine  of  nullification  in  a  new 
and  very  obnoxious  form.     The  movement  for  the  recall  of 
judicial  decisions  seems  to  have  derived  its  impetus  from 
certain  unpopular  decisions  rendered  by  state   courts  in 
affirmation  of  claims  to  federal  right,  and  is  not  directed 
solely  against  the  alleged  misinterpretation  of  state  consti- 
tutions by  state  courts. 

As  state  courts  administer  both  law  and  equity,  the  burden  The 
of  litigation  which  is  placed  upon  them  is  very  great.  Prac- 
tically  the  whole  domain  of  private  law  comes  within  state  which 
jurisdiction.  This  includes  the  civil  rights  of  the  individual,  ^rets  ad- 
the  law  of  property,  of  contracts,  of  torts  and  of  personal  minister, 
relations.  Within  the  cognizance  of  the  states,  moreover, 
is  the  whole  field  of  criminal  law  and  the  great  bodies  of  law 
which  have  been  developed  in  relation  to  corporate  business, 
state  banking,  insurance,  and  exchange.  Under  the  pro- 
pulsive influence  of  modern  social  and  economic  activity  the 
volume  of  state  law  has  been  increasing  at  an  enormous  rate. 
More  laws  mean  more  lawsuits,  and  more  lawsuits  mean 
more  courts,  although  this  elementary  truism  of  political 
science  is  not  always  appreciated  by  law-makers.  The  courts 
in  many  of  the  states  are  not  able  to  keep  up  with  their  work. 
In  some  cases  their  dockets  are  filled  for  many  months  and 
even  for  years  ahead. 

The  cumbrous  formalities  of  judicial  procedure,  relics  of  The 
older  days  when  litigation  was  associated  with  wealth  and  j^ure5 
leisure,  have  also  had  their  share  in  accentuating  the  conges-  of  judicial 
tion  of  business  in  the  courts.     Constitutions  and  laws  have  Procedure- 
been  so  regardful  of  the  individual's  rights  that  they  have 


500      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

methods 
of  judicial 
reform. 

Where 
reform 
should 
begin. 


A  word 
as  to 
lawyers. 


given  to  every  suitor  an  undue  liberty  to  stay  proceedings, 
to  take  exceptions,  to  move  in  arrest  of  judgment,  and  to 
make  appeal.  These  rights,  in  many  cases,  are  transformed 
into  privileges  of  obstruction  and  delay.  They  restrain  the 
judges  from  doing  many  things  which  judges  are  permitted 
to  do  in  all  other  countries  and  which,  if  allowed  here,  would 
greatly  expedite  the  administration  of  justice.  Many  of 
the  laws  relating  to  judicial  procedure,  ostensibly  in  the 
interest  of  justice,  actually  operate  to  withhold  from  the 
citizen  the  first  essential  of  justice,  which  has  been  so  recog- 
nized since  the  days  of  Magna  Carta, namely,  that  it  "shall 
not  be  delayed  to  any  man."  This  technical  and  super- 
legalistic  spirit  has  sometimes  made  the  courthouses  fit  the 
undergraduate's  definition  of  them  as  " places  where  justice 
is  dispensed  with." 

The  thing  most  urgently  needed  to  make  the  administra- 
tion of  justice  in  the  state  courts  more  satisfactory  is  not  a 
change  in  the  manner  of  selecting  judges,  or  in  the  method 
of  removing  them.  Judicial  reform  should  begin  with  the 
fountains  of  state  justice,  which  are  the  state  constitutions. 
To  be  effective,  it  must  also  reach  into  the  halls  of  legislation 
and  secure  an  improvement  in  the  standards  of  law-making. 

The  whole  system  of  procedure  needs  radical  overhauling, 
and  this  reconstruction  would  have  come  long  ago  were  it 
not  that  the  removal  of  legal  complexities  would  leave  less 
work  for  lawyers  to  do.  Lawyers  form  a  large  element  in 
legislatures,  and  they  are  not  usually  partisans  of  judicial 
reform.  Yet  despite  their  conservatism  in  matters  affecting 
their  own  profession,  lawyers  form  an  element  of  the  greatest 
value  in  legislative  bodies.  Their  influence  is  almost  always 
on  the  side  of  justice  and  moderation.  They  realize,  as  the 
layman  usually  does  not,  that  if  the  laws  are  unjust  in  their 
provisions  no  court  can  wring  justice  out  of  them.  American 
legislatures  without  lawyers  would  make  a  far  worse  showing, 
popular  notions  to  the  contrary  notwithstanding. 


CHAPTER  XXXV 

DIRECT  LEGISLATION  AND   THE   RECALL 

THE  movement  for  direct  legislation  by  the  people  through  The  most 
the  use  of  the  mitiatiye  and  referendum  has  made  sub-  ^j^S 
stantial  headway  among  the  states  during  the  last  twenty  phenom- 
years.  Its  progress  is,  perhaps,  the  most  striking  political 
phenomenon  of  the  present  generation.  It  indicates,  on 
the  one  hand,  a  widespread  spirit  of  popular  dissatisfaction 
with  the  workings  of  strictly  representative  government, 
and  on  the  other  hand,  a  growing  confidence  in  the  ultimate 
political  capacity  of  the  voters  themselves.  In  nearly  half 
the  states  the  voters  have  taken  directly  into  their  own 
hands  the  right  to  propose  and  to  enact  laws  without  the 
intervention  of  the  legislature.  The  legislature  remains, 
of  course,  the  normal  agency  of  law-making ;  but  where  the 
legislature  is  unresponsive  to  any  call  for  legislation  the 
people  may,  by  their  petitions  and  their  votes,  put  the  desired 
law  into  effect. 

The  mechanism  of  direct  legislation  consists  of  two  politi- 
cal instruments  known  as  the  initiative  and  the  referendum.1 

1  The  literature  relating  to  the  initiative  and  referendum  has  become 
most  voluminous  during  the  past  dozen  years.  Among  the  various  dis- 
cussions of  the  subject  from  every  point  of  view  the  following  may  be 
mentioned  as  the  more  useful:  E.P.  Oberholtzer,  The  Initiative,  Referendum 
and  Recall  in  America  (N.  Y.,  1911) ;  D.  F.  Wilcox,  Government  by  All  the 
People,  or  The  Initiative,  Referendum  and  Recall  as  Instruments  of  De- 
mocracy (N.  Y.,  1912) ;  C.  S.  Lobingier,  The  People's  Law  (N.  Y.,  1909) ; 
A.  L.  Lowell,  Public  Opinion  and  Popular  Government  (N.  Y.,  1914); 
C.  A.  Beard  and  B.  E.  Schultz,  Documents  on  the  State-wide  Initiative, 
Referendum  and  Recall  (N.  Y.,  1912) ;  and  J.  D.  Barnett,  The  Operation 
of  the  Initiative,  Referendum,  and  Recall  in  Oregon  (N.  Y.,  1915).  The 
most  compact  and  most  informing  of  all  monographs  on  the  subject, 
however,  is  G.  H.  Haynes,  The  Initiative  and  Referendum  (Boston,.  1917), 
printed  also  as  Bulletin  No.  6,  for  the  Massachusetts  Constitutional 
Convention  of  1917-1918. 

501 


502      THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  in-  The  initiative  is  a  device  by  which  any  person  or  group  of 
defined.  persons  may  draft  a  proposed  law  or  amendment  to  the 
state  constitution,  and  by  securing  in  its  behalf  a  designated 
number  of  signatures  may  require  that  the  proposed  law  or 
constitutional  amendment  be  submitted  to  the  voters  at  the 
polls ;  and  if  it  is  approved  by  a  majority  it  goes  into  effect. 
In  some  cases  the  requirement  is  that  the  proposal,  having 
been  duly  signed  by  a  sufficient  number  of  voters,  shall  go 
first  to  the  legislature  and  not  before  the  people  at  the  polls 
unless  the  legislature,  after  due  opportunity,  fails  to  accept 
it.  The  first  plan  is  known  as  the  direct  initiative;  the 
second  as  the  indirect  initiative. 

Theref-  The  referendum,  on  the  other  hand,  is  an  arrangement 

defined11       whereby  any  measure  already  proposed  and  passed  by  a 
legislature  may,  under  certain  circumstances,  be  withheld 
from  going  into  force  until  the  people  have  had  an  oppor- 
tunity to  express  their  opinion  on  it.     The  circumstances 
under  which  withholding  is  necessary  are  various.     Under 
Different       the  optional  referendum  the  legislature  may  or  may  not 
referen-        submit  a  measure  to  the  people  as  it  sees  fit.     Under  the 
dum.  compulsory  referendum  a  measure  must  be  so  submitted 

whenever  a  designated  number  of  voters  by  petition  request 
that  this  be  done.  As  ordinarily  used  the  term  referendum 
applies  to  this  compulsory  arrangement,  namely,  submission 
whenever  required  by  petition.  A  distinction  may  also  be 
drawn  between  the  constitutional  referendum,  which  is  the 
compulsory  referendum  applied  to  proposed  constitutional 
amendments  only,  and  the  statutory  referendum,  which  applies 
to  proposed  laws  only,  and  not  to  constitutional  changes, 
inter-  The  initiative  and  the  referendum  logically  go  together 

of°theng  anc^  supplemerrt  eacn  other.  The  initiative  is  a  positive 
two.  .  instrument  of  legislation ;  it  can  be  used  to  set  the  wheels 
in  motion.  The  referendum,  on  the  other  hand,  is  negative 
in  its  operation ;  it  gives  the  people  a  potential  veto  upon 
laws  enacted  by  the  legislature.  It  permits  the  voters  to 
have  the  last  say  as  to  whether  any  particular  law  shall  go 
into  effect  or  not. 

Notwithstanding  a  popular  impression  to  the  contrary, 
direct  legislation  by  the  people  is  not  new  in  principle  or 
in  practice.  The  initiative  and  the  referendum  are  merely 


DIRECT  LEGISLATION  AND  THE  RECALL          503 

new  names  for  very  old  institutions.     The  Athenian  de-  Direct 
mocracy  used  both  of  them,  although  in  a  somewhat  crude  \e^~n 
form.     It  employed  them  in  determining  questions  of  war  is  no 
and  peace,  or  in  actually  adjudging  the  guilt  or  innocence  novelty- 
of  accused  persons.     Socrates  was  condemned  to  death  by 
what  we  would  nowadays  call  a  bill  of  attainder  enacted 
through  the  agencies  of  direct  legislation.     The  so-called 
democracy  of  all  ancient  peoples  was  of  the  direct  rather  than 
of  the  representative  type.    Those  who  have  read  Tacitus  will 
remember  his  description  of  the  way  in  which  the  primitive 
Saxons,   progenitors  of  the  English  race,   regulated  their 
public  affairs  by  the  will  of  the  tribesmen  expressed  in  an 
assembly  of  the  adult  males.     Nor  does  one  have  to  go 
back  ten  or  twelve  centuries    in  order  to    pick    up    the 
precedents.      The  cantons  of  Switzerland  have  used  the 
initiative  and  referendum  in  one  form  or  another  for  many 
generations.     The  two  Bonapartist  emperors  of  the  French 
were  ardent  believers  in  having  great  questions  of  public 
policy  determined  by  plebiscites,  which  they  usually  manip- 
ulated, however,  to  their  own  profit.     Before  the  middle 
of  the  seventeenth  century  the  colony  of  Massachusetts 
employed  methods  of  proposing  and  enacting  laws  which 
were  to  all  intents  similar  to  the  direct  legislation  methods 
of  to-day.1    Among  the  earliest  American  state  constitutions, 
several  expressly  reserved  to  the  people  the  right  "to  give  in- 
structions to  their  representatives "  in  the  legislature.    The 
doctrine,  therefore,  that  the  people  should  have  the  right 
to  take  the  first  step  in  law-making,  or  the  last  step,  or 
both,  is  not  new.     What  is  relatively  novel  in  the  direct  But  its 
legislation  of  to-day  is  the  somewhat  intricate  machinery  ^ySen 
whereby  the  will  of  the  people  is  given  its  power  of  expression,  mechanism 
This,  however,  is  only  because  states  which  include  many  * 
hundred   thousands   of  voters   cannot   pursue  the   simple 
procedure  which  served  Athens,  or  a  Saxon  tribe,  or  a  Swiss 
canton,  or  a  Puritan  colony. 

The  first  American  state  to  adopt  the  initiative  and 
referendum  as  regular  instruments  for  the  making  of  laws 
was  South  Dakota.  In  a  general  way  it  copied  the  system 

1  See  the  examples  cited  by  George  H.  Haynes,  The  Initiative  and 
Referendum  (Boston,  1917),  pp.  &-10. 


504      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Spread  of 
the  system 
in  the 
American 

states. 


Reasons 
for  this 
spread : 


1.   the 
decline 
of  public 
confidence 
in  legis- 
latures. 


used  by  the  cantons  of  the  Swiss  Republic.  Other  states 
followed  soon  after,  Utah  in  1900,  Oregon  in  1902  and  so 
on.1  To-day  about  half  the  states  have  provided  for  direct 
legislation  in  some  form  or  other.  In  the  early  stages 
of  the  movement  its  progress  was  entirely  in  the  western 
states,  and  even  yet  its  main  strength  lies  west  of  the 
Mississippi.  Maine,  Ohio,  Michigan,  Massachusetts  and 
Maryland  are  as  yet  the  only  converts  in  the  eastern  half 
of  the  country.  As  movements  of  such  fundamental  impor- 
tance go,  however,  its  spread  has  been  astonishingly  rapid. 

How  is  this  remarkable  progress  of  direct  legislation  in 
the  states  of  the  Union  to  be  accounted  for?  There  has 
been  no  such  development  in  other  great  countries  having 
representative  systems  of  government,  such  as  Great 
Britain  and  France.  Two  reasons  may  be  assigned,  and 
perhaps  more.  On  the  one  hand  the  popularity  of  the 
initiative  and  referendum  is  clearly  indicative  of  a  declining 
confidence  in  the  judgment  and  integrity  of  legislators. 
As  regards  the  caliber  and  capacity  of  the  men  elected  to 
serve  in  them,  state  legislatures  are  not  what  they  used  to 
be.  The  reasons  for  this  decline  in  quality,  which  is  every- 
where apparent  to  the  naked  eye,  are  manifold.  They 
include  such  factors  as  the  selection  of  representatives  from 
small,  gerrymandered  districts,  the  complicated  methods 
of  nomination,  the  encroachment  of  the  state  constitutions 
upon  legislative  freedom,  and  many  others  which  have  been 
already  dilated  upon.  Legislatures,  moreover,  have  been 
lacking  in  leadership,  and  by  reason  of  this  handicap  have 
conspicuously  failed  to  do  their  work  in  a  businesslike  way. 
This  lack  of  leadership  has  developed  irresponsibility, 
spinelessness,  procrastination,  and  the  other  shortcomings 
which  have  given  the  legislatures  a  popular  reputation  for 
fickleness  and  incapacity.  At  any  rate,  the  unsatisfactory 
results  of  representative  law-making  in  many  states  has  led 

1  The  full  list  is  as  follows  :  South  Dakota,  1898 ;  Utah.,  1900 ;  Oregon, 
1902;  Nevada  (referendum  only),  1905;  Montana,  1906;  Oklahoma, 
1907;  Maine,  1908;  Missouri,  1908;  Arkansas,  1910;  Colorado,  1910; 
Arizona,  1911;  New  Mexico  (referendum  only),  1911;  California,  1911; 
Nebraska,  1912;  Washington,  1912;  Idaho,  1912;  Ohio,  1912;  Nevada 
(adds  initiative),  1912;  Michigan,  1913;  North  Dakota,  1914;  Mis- 
sissippi, 1914;  Maryland  (referendum  only),  1915;  Massachusetts,  1918. 


DIRECT  LEGISLATION  AND  THE  RECALL          505 

to  the  conviction  that  the  people  themselves  could  not  do 
much  worse  and  might  do  a  great  deal  better.  It  may  be 
taken  as  axiomatic  in  a  democracy  that  when  things  go 
badly  the  populace  will  not  hasten  to  place  the  blame  on  its 
own  shoulders.  It  is  the  habit  of  the  electorate  to  take  for 
granted  its  own  infallibility.  When  the  representatives  of 
the  people  give  any  just  ground  for  criticism,  accordingly, 
the  popular  remedy  is  not  the  adoption  of  some  measures 
designed  to  get  better  representatives  by  giving  them  more 
responsibility,  but  rather  to  take  away  from  the  wicked  and 
slothful  servant  even  that  which  he  hath. 

Another  reason  for  the  spread  of  direct  legislation  is  to  be  2.  the 
found  in  the  readiness  of  the  average  legislator  to  subordinate  Jj^11^88 
the   public   interest   to   his   own   political   ambitions.     On  latures 
many  questions  which  come  before  legislatures  the  chief  j£e®™|J? 
desire  of  many  members  is  to  escape  the  dilemma  of  taking  sponsibiiity. 
one  side  or  the  other.     The  senator  or  assemblyman  whose 
first  care  is  for  his  own  reelection   finds  himself  likely  to 
lose  some  votes  in  his  district  no  matter  which  way  he 
votes  on  these  questions.     What  more  natural,  therefore, 
than  that  he   should    welcome    an   easy  way   out    of   his 
personal  difficulties  by  "  putting  the  matter  directly  up  to 
the  people."     Hence  it  is  that  in  many  states  the  legislatures 
of  their  own  volition  and  in  evasion  of  their  own  responsi- 
bility have  fallen  into  the  practice  of  referring  matters  to  the 
people,  not  because  the  voters  could  be  trusted  to  settle 
them  more  wisely,  but  because  supine  members  preferred 
that   means  of  avoiding  duties  which  they  were  elected 
to  perform.     The  people,  of  course,  soon  learned  to  relish 
the  compliment  involved  in  this  constant  reference  of  diffi- 
cult problems  to  their  omniscience  for  decision.     Having 
found  their  task  both  easy  and  interesting,  the  voters  quite 
naturally  declare  themselves  ready  to  perform  it  on  a  more 
comprehensive  scale. 

Direct  legislation  requires  considerable  formalities.     No  The 
states  have  exactly  the  same  requirements,  although  there 
is   a   similarity   in   essentials.     The   mode   of  initiating   a  legis- 
proposed  law  is  everywhere  by  petition ;    the  method  of  latlon- 
enacting  it  (if  the  legislature  does  not  act  in  the  meantime) 
is  by  popular  vote.     Between  the  starting  of  a  petition, 


506      THE  GOVERNMENT  OF  THE  UNITED  STATES 


1.   the 

initiative 

petition. 


2.   the  sub- 
mission of 
proposals 
at  the 
polls. 


however,  and  the  ultimate  decision  of  the  people  at  the 
polls  there  is  a  considerable  intervening  procedure  which 
will  be  summarized  in  the  next  few  paragraphs. 

The  first  step  in  the  exercise  of  the  popular  initiative 
is  the  framing  of  a  proposed  law  or  constitutional  amend- 
ment. This  may  be  done  by  any  one;  but  it  is  usually 
undertaken  by  some  organization.  A  proposed  measure 
relating  to  labor,  or  agriculture,  or  prohibition,  or  woman 
suffrage,  for  example,  is  customarily  initiated  by  bodies 
which  represent  such  interests  or  movements.  Then  comes 
the  quest  for  signatures.  From  five  to  ten  per  cent  of  the 
qualified  voters  is  the  usual  requirement  where  a  law  is 
proposed ;  a  higher  percentage  (from  eight  to  fifteen  or 
even  twenty  per  cent)  is  ordinarily  required  if  the  proposal  is 
for  a  constitutional  amendment.  In  some  cases,  however, 
the  percentage  is  the  same  for  both.  If,  accordingly,  there 
are  a  half  million  qualified  voters  in  the  state,  the  number  of 
required  signatures  will  be  from  twenty-five  thousand  to 
fifty  thousand  according  to  the  percentage  stipulated. 
Each  state  has  its  own  rule  on  this  point,  but  a  substan- 
tial number  of  signatures  is  everywhere  essential,  at  any 
rate,  a  number  large  enough  to  show  that  there  is  some 
degree  of  popular  demand  for  the  measure. 

When  a  petition  has  obtained  the  requisite  number  of 
signatures  it  is  submitted  to  some  designated  state  official, 
usually  the  secretary  of  state,  who  checks  the  names  and  if 
he  finds  them  sufficient  makes  out  a  certificate  to  that  effect. 
Occasionally  there  is  provision  for  the  filing  of  additional 
signatures  in  case  those  on  the  original  petition  prove 
insufficient.  Then  the  measure  is  placed  (usually  in  abbre- 
viated form  or  by  its  title  only)  upon  the  ballot  at  the  next 
regular  state  election,  or  at  a  special  election.  As  many 
measures  may  be  placed  on  the  ballot  as  are  properly 
petitioned  for,  and  the  legislature  may  submit  its  own 
measures  in  addition.  If  two  conflicting  proposals  appear  on 
the  ballot  and  both  are  approved  by  the  voters,  it  is  usually 
provided  that  the  one  receiving  the  highest  number  of 
affirmative  votes  shall  become  effective.  Ordinarily  a 
majority  of  the  votes  recorded  upon  the  measure  is  sufficient 
to  pass  it ;  but  in  a  few  states  it  is  provided  that  at  least  a 


DIRECT  LEGISLATION  AND  THE  RECALL          507 

designated  percentage  of  the  total  vote  shall  be  cast  on  the 
question,  otherwise  the  proposal  is  not  to  be  regarded  as 
having  been  accepted  by  the  people. 

To  inform  the  voters  upon  the  questions  submitted  to  Publicity 
them  publicity  pamphlets  are  in  some  states  prepared  and 
distributed  before  the  polling.  In  California  this  pamphlet 
contains  the  text  of  the  measures  which  are  to  be  voted  upon, 
together  with  the  arguments  for  and  against  each  pro- 
posal, these  arguments  being  prepared  by  persons  who  are 
designated  for  the  purpose  from  among  the  supporters  and 
opponents  respectively  by  the  presiding  officer  of  the  senate. 
A  copy  of  this  pamphlet  is  mailed  to  every  voter  in  the  state. 
While  the  expense  of  this  publicity  work  is  "considerable 
and  a  great  many  of  the  pamphlets  are  thrown  away  without 
being  read,  the  plan  undoubtedly  aids  in  informing  the 
voters  and  stimulates  interest  in  the  question  submitted.1 

When  a  measure  has  been  adopted  by  the  people  at  the  Resub- 
polls,  it  cannot  ordinarily  be  amended  or  repealed  by  any 
action  of  the  legislature.     No  measure  referred  to  the  people  ) 
and  adopted  by  them,  moreover,   can  be  vetoed  by  the 
governor.     If  a  proposal  is  rejected  by  the  people,  it  may 
usually  be  brought  forward  by  another  petition  the  next 
year;   but  this  liberty  has  been  found  to  result  in  the  too' 
frequent  submission  of  the  same  question,  and  a  few  states 
have  made  provision  that  a  rejected  measure  may  not  be 
brought  forward  for  at  least  three  years  unless  a  much  larger 
than  the  customary  number  of  signatures  is  secured. 

Generally  speaking,  the  compulsory  referendum  follows  How  the 
the  same  general  lines  so  far  as  concerns  the  securing  and 
certifying  of  signatures.  The  petition  in  this  case  does  not 
propose  a  new  law,  but  merely  asks  that  some  measure 
passed  by  the  legislature  be  submitted  to  the  voters  before 
being  put  into  effect.  The  question  is  then  placed  on  the 
ballot ;  and  if  a  majority  of  the  voters  indorse  the  measure  it 
becomes  effective ;  but  if  a  majority  vote  adversely,  it  be- 
comes as  invalid  as  if  the  legislature  had  never  enacted  it. 

1  In  California,  during  the  years  1908-1915  when  no  publicity  pamphlets 
were  issued,  the  average  vote  upon  measures  submitted  was  43  %  of  the 
total  attendance  at  the  polls;  in  1916,  with  the  publicity  pamphlet  in 
use,  it  was  79%.  G.  H.  Haynes,  The  Initiative  and  Referendum  (Boston, 
1917),  p.  37. 


508      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Emergency 
measures. 


Summary. 


The  merits 
and  defects 
of  direct 
legislation. 


The  requirement  that  a  measure  passed  by  the  legislature 
shall  not  go  into  force  for  a  certain  period  (usually  ninety 
days),  so  that  opportunity  may  be  given  for  riling  petitions 
against  it,  might  become  a  serious  obstacle  in  case  of  emer- 
gency, as  for  example,  in  the  event  of  war,  or  civil  strife,  or 
a  financial  panic.  To  meet  this  eventuality  it  is  usually 
provided  that  emergency  measures,  that  is  to  say  "measures 
immediately  necessary  for  the  preservation  of  the  public 
peace,  health,  and  safety,"  may  be  put  into  force  by  the 
legislature  at  once.  To  guard  against  the  abuse  of  this 
privilege  it  is  required  that  the  existence  of  an  emergency 
shall  be  explicitly  stated  in  the  preamble  of  the  measure, 
and  that  no  emergency  law  shall  be  passed  except  by  a  two- 
thirds  vote  of  both  chambers  in  the  legislature.  In  spite 
of  these  safeguards,  however,  the  emergency  privilege  is 
frequently  abused. 

In  states  which  have  the  initiative  and  referendum, 
therefore,  questions  may  be  placed  upon  the  ballot  in  any 
one  of  three  different  ways.  First,  the  legislature  may  of 
its  own  accord  refer  a  measure  to  the  voters  for  their  decision. 
Second,  an  initiative  petition  may  be  presented  bearing  the 
requisite  number  of  signatures  asking  that  any  proposed 
measure  be  placed  upon  the  ballot  either  without  going  to 
the  legislature  at  all  or  because  the  legislature  has  declined 
to  pass  it.  Third,  a  law  may  have  passed  the  legislature  but 
by  reason  of  formal  protest  embodied  in  a  petition  may  be 
withheld  from  going  into  force  until  submitted  to  the  people. 
By  one  or  other  of  these  ways  a  considerable  batch  of  ques- 
tions is  every  year  submitted  to  the  voters  of  the  various 
states. 

As  to  the  merits  and  defects  of  the  initiative  and  refer- 
endum there  are  wide  differences  of  opinion.  Although 
direct  legislation  in  its  present  form  has  been  used  in  the 
United  States  for  only  twenty  years  or  thereabouts,  it  has 
nevertheless  received  during  this  period  a  trial  on  a  suffi- 
ciently broad  scale  and  unde"r  sufficiently  varied  conditions 
to  warrant  a  fair  survey  of  its  achievements  and  short- 
comings. As  a  result  of  this  experience  a  substantial  body 
of  facts  and  figures  has  become  available,  but  close  observers 
hold  diverse  views  as  to  what  these  facts  and  figures  really 


DIRECT  LEGISLATION  AND  THE  RECALL          509 

disclose.  No  question  of  present-day  political  discussion, 
indeed,  affords  ground  for  wider,  yet  thoroughly  sincere, 
divergences  of  conviction  than  the  question  whether  direct 
legislation  actually  helps  or  hinders  the  efficient  workings 
of  a  representative  democracy. 

Chief  among  the  reputed  merits  of  the  initiative  and  Reputed 
referendum  is  the   claim  that  it   does  not  supplant  but  Jj}^0* 
supplements,  improves,   and  renders  more  democratic  the  legislation: 
traditional  machinery  of  representative  government.     It  is 
argued  that  the  policy  of  making  the  laws  exclusively  through 
the  medium  of  a  legislature  has  not  measured  up  to  rea- 
sonable expectations.     Conditions  which  have   existed  in 
many  American  states,  and  which  continue  in  some  of  them, 
afford  proof  that  legislatures  are  not  always  inspired  by 
considerations  of  public  interest  alone,  but  are  influenced  i.  prevents 
by  sectional,  partisan,  class,  and  even  by  private  motives  Kl<dfllli**" 
to   a   considerable   extent.     This   is   hardly   the   place   to  law-making 
particularize  among  legislatures,  but  the  pressure  of  sinister  I 
influences   upon   the   course   of   law-making  has  been  far 
stronger  than  the  average  citizen  realizes.     Even  those  who 
are  firmly  opposed  to  the  use  of  the  initiative  and  referendum 
have  frankly  admitted  this  too  frequent  subordination  of 
the  public  welfare  to  the  arrogant  demands  of  invisible 
interests.1     Laws  have  been  enacted  and  bills  have  been 
defeated  year  after  year  in  some  state  legislatures  for  no 
other  reason  than  because  the  railroads,  the  liquor  interests, 
the  banks,  the  labor  leaders,  or  the  political  bosses  have 
given  the  word.     In  this  matter,  it  is  quite  true,  there  has 
been  a  considerable  difference  between  state  legislatures. 
Some  have  been  consistently  under  the  thumb  of  special 
interests.     Others  have  shown  the  influence  of  lobbying  to  a 
relatively  slight  degree.     All  have  been  more  or  less  touched 
by  the  taint,  however,  as  any  legislator  of  experience  can 
testify. 

In  view  of  the  arrangements  under  which  state  legislators 
have  been  chosen  and  of  the  handicaps  under  which  they 
have  tried  to  perform  their  work  it  is  not  at  all  surprising 

1  See,  for  example,  the  speech  of  the  Hon.  Elihu  Root  on  "Invisible 
Government"  in  the  New  York  Constitutional  Convention  of  1915, 
reprinted  in  his  Political  Addresses  (Cambridge,  1916). 


510      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Why 
special 
interests 
have  had 
an  advan- 
tage in 
the  past. 


2.   affords 
an  incen- 
tive to 
political 
education. 


that  the  results  have  failed  to  satisfy.  The  methods  of 
nominating  and  electing  members  of  the  legislature  have 
played  largely  into  the  hands  of  sinister  interests.  They 
have  tended  to  befog  the  voters,  to  make  politics  a  profession, 
and  to  encourage  the  professional  politician ;  they  have 
made  election  to  the  legislature  such  an  expensive  process 
that  candidates  are  tempted  to  form  alliances  with  those 
who  are  able  and  willing  to  contribute  generously  to  their 
campaign  funds.  The  system  of  nomination  by  party 
primaries,  the  long  ballot,  the  use  of  party  designations  on 
the  ballot,  and  the  frequency  of  elections  have  all  helped 
to  lower  the  general  integrity  of  legislative  bodies.  These 
defects  in  the  system  of  representative  legislation  could  un- 
doubtedly be  eradicated  by  the  process  of  one  reform  after 
another,  but  reform  by  steady  evolution  is  a  slow  method, 
whereas  the  initiative  and  referendum  are  heralded  as  pro- 
viding a  means  by  which  all  can  be  set  right  at  once.  And 
public  opinion  seems  to  prefer  the  brand  of  reform  that 
comes  in  full  doses. 

Again,  it  is  argued  that  the  system  of  direct  legislation 
;  possesses  an  educational  value.  By  means  of  the  initiative 
!the  political  instincts  and  abilities  of  the  individual  are 
encouraged ;  men  are  inspired  to  formulate  political  ideas 
and  policies  of  their  own  and  to  press  these  upon  the  public 
attention  with  a  reasonable  hope  that  they  may  ultimately 
accomplish  something.  Under  the  system  of  law-making 
by  legislatures  alone,  we  are  told,  the  public  welfare  suffers 
not  alone  from  the  assaults  of  the  special  interests  but  from 
public  apathy  as  well.  The  individual  citizen  is  not  en- 
couraged to  do  his  own  thinking  on  public  matters  ;  his  rep- 
resentative is  paid  to  do  it  for  him.  Under  the  system  of 
direct  legislation,  on  the  other  hand,  the  voter  is  virtually 
compelled  to  inform  himself  upon  public  questions.  He 
cannot  depute  that  task  to  any  one  else.  He  is  showered 
with  publicity  pamphlets  and  other  data ;  he  is  confronted 
with  discussions  in  the  newspapers ;  he  has  the  pros  and 
cons  of  measures  thrust  before  him  at  every  turn  until 
"he  cannot  chuse  but  hear."  Eternal  vigilance  on  the 
citizen's  part,  not  merely  on  the  part  of  his  representatives, 
is  the  price  of  liberty.  It  is  of  the  essence  of  democracy 


DIRECT  LEGISLATION  AND  THE  RECALL          511 

that  the  whole  people  shall  bear  their  own  public  responsi- 
bilities and  shall  not  deposit  them  permanently  upon  the 
shoulders  of  a  few  representatives. 

Between  what  the  people  want,  and  what  the  people  get,  3.  makes 
there  is  in  some  American  states  a  considerable  gap.  The  j^t  truly 
voters  have  sometimes  sought  to  obtain  what  they  want  by  responsive 
changing  their  representatives,  but  only  to  find  that  candi- 
dates  from  both  political  parties  are  amenable  to  the  same 
underhand  influence.  To  be  truly  representative  of  the 
electorate  a  government  must  be  readily  responsive  to 
public  opinion,  and  to  be  responsive  it  must  have  the 
machinery  of  close  contact.  Where  there  is  no  opportunity 
for  legislation  by  direct  methods  the  legislators  sometimes 
ignore  public  opinion  and  sometimes  act  in  wilful  disregard 
of  it.  The  growth  of  popular  interest  in  public  affairs  is 
stunted  by  the  fact  that  this  is  so.  Men  will  not  produce 
new  ideas  or  urge  the  adoption  of  new  ideas  unless  there  is 
some  hope  of  carrying  them  to  fruition.  Political  thought 
and  discussion  can  best  be  stimulated  by  giving  ideas  the 
opportunity  of  materializing  into  constitutions,  policies, 
and  laws.  In  a  word,  the  way  to  get  voters  interested  in 
measures  is  to  ask  for  their  opinions  on  measures,  not  merely 
for  their  opinions  on  men.  The  way  to  educate  the  voter 
in  matters  of  government  is  to  submit  things  to  him  in 
person  and  not  merely  to  some  one  who  happens  to  be  his 
official  spokesman. 

A  legislator  represents  only  the  majority  of  the  voters  4.  gives _af#s&r 
in  his  district.     He  does  not  represent  either  the  wishes  or  ^nPlnm 
the  opinions  of  the  minority.     Hence  it  is  that  under  the  interest 
system  of  representative  lawmaking  a  considerable  fraction  "J^^ 
of  the  voters  are  not  represented  at  all.     True,  these  voters  ment. 
may  also  be  in  the  minority  when  measures  are  submitted 
directly ;   but  they  will  at  least  feel  in  such  case  that  they 
are  being  given  a  real  voice  in  the  determination  of  public 
policy. 

John  Stuart  Mill  once  remarked  that  "the  magic  of  prop- 
erty turns  sand  into  gold."  The  voter  will  soon  be  roused 
from  indifference  if  he  can  be  shown  that  the  government 
is  his  property  and  belongs  to  no  one  else.  The  initiative 
and  referendum  afford  regularly  an  overt  demonstration  of 


512      THE  GOVERNMENT  OF  THE  UNITED  STATES 


general. 


Reputed 
defects  of 
direct 
legislation: 

1.    breaks 
down  the 
distinction 
between 
constituent 
and  law- 
making 
authority. 


the  right  which  the  people  possess  in  their  own  public  af- 
fairs and  impose  upon  them  a  corresponding  responsibility. 
They  bring  home  to  every  voter's  mind  the  realization  that 
he  is  a  sovereign  in  fact  as  in  name.  Or,  to  express  it  in 
legal  phraseology,  the  interest  of  the  legislator  in  government 
is  fiduciary  only ;  that  of  the  people  is  proprietary.  Hence, 
it  is  claimed,  the  system  of  direct  lawmaking  will  eliminate 
in  large  degree  that  public  apathy  which  has  been  the  ulti- 
mate source  of  many  political  abuses,  by  inspiring  the  serious 
and  public  discussion  of  all  important  measures. 

There  are  other  arguments  in  favor  of  the  initiative 
and  referendum,  but  they  are  for.  the  most  part  auxiliary  to 
the  ones  just  outlined.  Representative  lawmaking  has  not 
been  satisfactory  in  American  states,  and  to  a  large  fraction 
of  the  voters  experience  has  demonstrated  that  without  a 
thorough  reconstruction  of  the  whole  American  political 
system  it  cannot  be  made  anything  different,  for  it  is  in  large 
part  due  to  the  principle  of  checks  and  balances  which  has 
compelled  legislatures  to  undertake  the  making  of  laws 
without  leadership  or  real  responsibility.  Direct  legis- 
lation cuts  right  through  this  principle,  restores  to  the 
people  their  sovereignty  in  all  branches  of  government, 
makes  their  fiat  binding  on  all,  whether  legislators,  governors, 
or  courts,  and  thus  "rolls  away  the  stone  from  the  sepulchre 
of  real  democracy."  That,  at  any  rate,  is  what  its  partisans 
claim  for  it. 

But  there  is  quite  as  much  to  be  said  on  the  other  side. 
First,  it  is  urged  that  if  the  system  of  direct  legislation  is 
applied  on  the  same  basis  to  both  constitutions  and  laws,  it 
breaks  down  the  traditional  distinction  between  these  two 
branches  of  jurisprudence.  For  a  long  time  American  states 
have  been  governed  on  the  theory  that  constitutions  are  the 
embodiment  of  fundamental  principles,  that  they  guarantee 
the  inalienable  rights  of  the  citizen  (whether  he  be  among 
the  majority  or  among  the  minority),  and  that  they  should 
not  be  changed  at  every  rash  expression  of  popular  caprice. 
Laws,  on  the  other  hand,  have  been  regarded  as  possessing 
no  such  fundamental  character,  and  hence  have  not  been 
placed  beyond  the  reach  of  easy  change.  The  initiative  and 
referendum  arrangements  now  in  vogue  in  such  states  as 


DIRECT  LEGISLATION  AND  THE  RECALL          513 

Oregon  and  California  sweep  away  this  distinction.  Con- 
stitutions and  laws  can  be  changed  by  the  people  in  precisely 
the  same  way ;  the  provisions  of  the  one  are  no  more  funda- 
mental than  those  of  the  other.  Minorities  have  no  rights 
as  against  the  wishes  of  the  majority  as  expressed  on  the 
ballot. 

That  doctrine  upsets  a  recognized  presupposition  of  all  importance 
free  government,  namely,  that  certain  rights  such  as  freedom 
of  religious  belief,  equality  before  the  law,  and  security  in 
person  and  property,  are  the  impregnable  rights  of  the 
whole  people  and  are  not  within  the  power  of  a  mere  majority 
to  alter  or  deny.  "Government  by  majority,"  as  one 
writer  puts  it,  "  is  merely  a  convenient  means  of  conducting 
public  affairs,  where  and  in  so  far  as  there  is  a  basis  of  general 
agreement  deeper  and  more  persistent  than  the  variations 
of  public  opinion ;  but  as  soon  as  a  really  fundamental 
point  is  touched,  as  soon  as  a  primary  instinct,  whether  of 
self-preservation  or  of  justice,  begins  to  be  seriously  and 
continuously  outraged,  the  democratic  convention  [i.e. 
basis  of  government]  gives  way.  No  minority,  for  example, 
even  in  a  compact  modern  state,  either  would  or  ought  to 
submit  to  a  decision  of  the  majority  to  prohibit  the  exercise 
of  their  religion." 

There  has  been  much  loose  talk  on  the  subject  of  "govern-  What 
ment  by  public  opinion."  It  has  been  assumed  in  some 
quarters  that  government  by  the  selfish  desires  of  a  bare 
majority  is  entitled  to  that  appellation.  Yet  desires  and 
opinions  are  two  quite  different  things,  nor  is  the  general 
sentiment  of  any  community  always  ascertainable  by  merely 
counting  heads.2  The  intrinsic  character  of  the  issues,  the 
actuating  motives,  the  intensity  of  the  contending  beliefs, 
all  count  for  something ;  or  should  do  so,  in  measuring 
public  opinion.  If  fifty-one  per  cent  of  the  voters,  for 
example,  made  up  entirely  of  those  who  own  no  property, 
should  adopt  a  constitutional  amendment  confiscating  with- 
out compensation  all  the  property  of  the  other  forty-nine  per 

1  G.  Lowes  Dickinson,  The  Development  of  Parliament  during  the  Nine- 
teenth Century,    pp.  161-162. 

2  For  a  full  discussion  of  this  topic  see  President  Lowell's  Public  Opinion 
and  Popular  Government  (N.  Y.,  1913),  especially  chs.  i-iii. 

2L 


514      THE  GOVERNMENT  OF  THE  UNITED  STATES 


2.   tends 
to  break 
down  the 
quality 
of  legis- 
latures. 


cent,  would  that  be  an  act  of  government  by  public  opinion 
or  of  government  by  organized  selfishness?  Would  such 
action  be  consistent  with  the  usual  conception  of  democracy 
as  a  system  of  government  for  the  people,  by  the  people, 
and  of  the  people?  Or  would  it  not  be  necessary  to  re- 
define democracy  as  a  scheme  of  government  under  which 
"  they  may  take  who  have  the  power,  and  they  may  keep 
who  can"?  "It  cannot  be  too  often  repeated,"  as 
President  Hadley  has  said,  "that  those  opinions  which  a 
man  is  prepared  to  maintain  at  another's  cost,  but  not  at 
his  own,  count  for  little  in  forming  the  general  sentiment 
of  a  community,  or  in  producing  any  effective  public  move- 
ment." 1 

The  system  of  direct  legislation,  according  to  its  opponents, 
is  incompatible  with  the  representative  type  of  government ; 
its  adoption  will  not  supplement  but  must  eventually  sup- 
plant representative  law-making ;  it  will  deprive  legislators 
of  power  and  responsibility,  and  thus  make  the  position  of 
representative  even  less  attractive  to  men  of  adequate 
quality  and  character  than  it  is  at  present.  This  is  an 
objection  which  cannot  be  lightly  brushed  aside,  for  the 
institutional  history  of  all  democratic  countries  lends  it 
support.  Indeed,  if  there  is  any  principle  which  American 
political  experience  seems  to  substantiate  it  is  the  doctrine 
that  a  sure  way  to  deteriorate  the  membership  of  any 
representative  body  is  to  reduce  its  powers  and  its  respon- 
sibility. When  the  choice  of  inferior  representatives  does 
not  bring  any  serious  penalty  upon  the  voters  in  the  way  of 
bad  laws,  high  taxes,  and  general  inefficiency,  it  has  become 
a  truism  that  inferior  men  will  be  chosen. 

It  is  always  easy  to  choose  inferior  men,  for  they  are  the  ones 
who  put  themselves  forward.  They  are  ready  to  neglect  their 
own  personal  affairs,  ready  to  promise  much,  ready  to  do  favors. 
Men  of  the  right  type  have  to  be  drawn  into  political  life 
at  personal  sacrifice,  and  they  cannot  be  induced  to  make 
this  sacrifice  in  order  to  accept  public  posts  which  do  not 
offer  real  opportunities  of  service.  Hence  it  has  been  found 
that  when  the  authority  of  any  representative  body  is 
reduced  to  the  point  where  it  can  do  little  harm  (and  by 

1  The  Education  of  the  American  Citizen  (New  Haven,  1910),  p.  27. 


DIRECT  LEGISLATION  AND  THE  RECALL         '515 

the  same  token,  little  good)  the  quality  of  its  membership 
trends  downward.  The  history  of  city  councils  in  the 
United  States  during  several  decades  gave  an  interesting 
exemplification  of  this.  If  the  resort  to  direct  legislation 
on  any  large  scale  would  not  result  in  filling  the  legislatures 
with  poorer  representatives  of  the  people,  then  the  political 
annals  of  America  have  been  teaching  a  false  lesson.  The 
gains  through  direct  legislation  may  more  than  offset  this 
loss,  it  is  true,  but  to  maintain^  that  state  legislatures  will 
continue  under  the  new  arrangements  to  turn  out  work  of 
as  good  or  even  better  quality  is  to  disregard  practical 
experience  for  pure  empiricism. 

Attention  is  frequently  called  to  the  great  gulf  which  3.  .while 
lies  between  what  the  system  of  direct  legislation  purports  {£off^inr 
to  do  and  what  it  actually  does.     It  purports  to  obtain  a  govem- 
popular  verdict  on  measures,  to  establish  lawmaking  by  a  ™e"tr^y 
majority  of  the  electorate.     In  actual  practice,  however,  itestab- 
measures   are  usually   adopted   or   rejected   by   a   decided 
minority  of  the  voters.     Not  more  than  80  per  cent  of  the  tem  of 
voters  appear  at  the  polls  in  regular  elections,  as  a  rule, 
and  of  these  only  from  70  per  cent  to  85  per  cent  vote 
on  any  particular  question,  the  remainder  confining  their 
attention  to  the  candidates.     Thus  it  is  that  no  more  than 
60  per   cent   of  the  registered  voters  usually  pass  upon 
any  proposed  measure,  and  a  majority  of  these,  in  other 
words  31  per  cent  of  the  whole  electorate,  is  sufficient  for 
a  decision.     Constitutions  are  changed  and  laws  enacted 
more  often  by  one-quarter  or  one-third  of  the  whole  electorate 
than  by  a  larger  percentage.     So  that  the  "rule  of  the 
majority "  becomes  in  fact  the  rule  of  a  majority   among 
those  who  are  sufficiently  interested  in  a  matter  to  come  to 
the  polls  and  record  their  verdict  upon  it. 

Who   are   the   ones   thus   sufficiently   interested?     Who  4.  pro- 
circulate  and  sign  the  initiative  petitions  for  the  various  ™0°^0fe 
questions  which  go  upon  the  ballot  ?     Are  they  drawn  from  organized 
the  general  rank  and  file  of  the  voters,  or  are  they  mainly 
those  who  have  some  strong  personal  interest  at  stake? 
These  queries  are  of  importance,  for  if  the  twenty,  thirty, 
or  forty  per  cent  of  the  voters  who  form  a  sufficient  majority 
to  carry  a  measure  are  a  fair  sample  of  the  whole  body  of  the 


516-  THE  GOVERNMENT  OF  THE  UNITED  STATES 


5.   does 

not  pro- 
mote in- 
dependence 
of  thought 
or  effort. 


voters,  their  action  may  still  be  reasonably  regarded  as 
reflecting  trie  general  will.  But  in  most  cases  they  are  not  a 
fair  sample.  The  ease  or  difficulty  with  which  signatures 
to  an  initiative  petition  can  be  gathered  depends  in  large 
degree  upon  what  the  petition  asks  for.  If  it  is  a  matter 
affecting  the  interests  of  labor  the  requisite  names  are  not 
hard  to  obtain.  Passing  the  lists  around  at  meetings  of 
labor  organizations  will  accomplish  the  work.  Commercial 
organizations,  churches,  granges,  and  agricultural  asso- 
ciations all  have  the  same  facility  in  any  matter  which 
affects  their  particular  interests.  A  movement  that  has 
the  support  of  wealth  can  pay  canvassers  to  get  signatures. 
But  where  measures  are  desired  in  the  interest  of  the  ordinary 
citizen  who  has  no  particular  organization  looking  out  for 
him,  the  work  of  getting  questions  on  the  ballot  by  means 
of  several  thousand  signatures  is  not  likely  to  be  under- 
taken at  all.  Legislation  for  the  ordinary  citizen,  under  the 
initiative  and  referendum,  is  nobody's  business. 

So  it  is  also  at  the  polls.  The  elements  among  the  voters 
to  whom  a  question  appeals  as  a  matter  of  personal  or  class 
interest  will  go  to  the  polls  and  vote  upon  it.  Those  who 
stay  away  from  the  polls  are  for  the  most  part  the  ones  whose 
personal  interests  are  not  affected.  The  rule  of  the  majority 
gives  way,  accordingly,  to  legislation  by  a  minority  which 
embodies  the  strength  of  organized  self-interest. 

It  is  taken  for  granted  by  its  supporters  that  the  system 
of  direct  legislation  will  transfer  to  the  unorganized  and 
independent  elements  among  the  people  those  advantages 
which  have  hitherto  been  monopolized  by  the  great  political 
parties  or  by  the  vested  economic  interests.  American 
political  history  does  not  afford  any  ground  for  such  assump- 
tion. Measures  without  organized  support  have  the  same 
chance  of  winning  at  the  polls  as  candidates  similarly 
situated ;  and  it  has  been  all-too-often  demonstrated  that 
the  customary  place  of  the  independent  candidate  with  un- 
organized support  is  at  the  bottom  of  the  list  when  the  votes 
are  counted.  Is  it  reasonable  to  hope  that  by  virtue  of 
any  mere  change  in  the  mechanism  of  legislation  an  un- 
organized majority  of  the  people,  actuated  by  unselfish 
motives,  can  regularly  triumph  at  the  polls  over  a  well 


DIRECT  LEGISLATION  AND  THE  RECALL          517 

organized  minority,  backed   by  ample  funds  and  spurred 
on  by  all  the  zeal  that  self-interest  can  supply? 

The  experience  in  various  American  states  with  the  machin- 
ery of  direct  legislation  during  the  last  dozen  years  answers 
that  question.  The  power  in  law-making  has  not  been  taken 
from  the  organized  part  of  the  electorate  but  merely  trans- 
ferred from  one  set  of  organizations  to  another.  For  guidance 
upon  the  merits  of  the  questions  upon  his  ballot,  as  well  as 
upon  the  claims  of  candidates,  the  voter  still  turns  to  his  politi- 
cal party,  to  his  business  associates  in  a  chamber  of  commerce, 
to  his  labor  union,  or  to  whatever  other  organization  he 
may  be  affiliated  with.  These  bodies  officially  indorse  some 
measures  and  oppose  others.  The  chances  of  a  measure's 
success  depend,  to  a  large  extent,  upon  the  number  and 
strength  of  the  organizations  supporting  it.  The  real  voting 
is  done,  not  by  the  voters  who  have  taken  the  time  to  study 
each  one  of  many  questions  and  to  form  unbiased  opinions 
thereon,  but  by  leaders  and  counsellors  whose  advice  on 
such  matters  the  voters  in  large  groups  are  habituated  to 
follow.  Direct  legislation  does  not,  in  practice,  reduce  the 
premium  which  is  placed  on  organization  under  the  strictly 
representative  system  of  government. 

The  referendum  is  at  best  a  call  for  the  yeas  and  nays,  e.  is 
not  for  a  full  expression  of  opinion.  It  assumes  that  every  £™|^d 
voter  is  ready  and  able  to  give  an  unqualified  yes  or  no  categorical 
to  any  question  of  public  policy.  The  truth  is,  however,  nat1 
that  the  man  who  is  prepared  to  give  categorical  answers  is 
usually  the  one  who  gives  no  thought  to  the  questions.  The 
process  of  law-making  by  legislatures  affords  opportunity 
for  compromises,  for  conciliating  opposition  by  concessions 
which  do  not  affect  the  groundwork  of  measures,  and  for 
reaching  agreements  by  the  procedure  of  give  and  take. 
The  initiative  and  referendum  have  no  such  flexibility 
of  operation.  Every  voter  must  be  wholly  for  or  wholly 
against  a  measure.  His  vocabulary  of  opinion  is  limited  to 
two  words.  That  fact  precludes  all  need  of  study  on  his 
part.  It  makes  easy  the  policy  of  following  some  leader's 
counsel  or  some  organization's  advice. 

In  balancing  these  various  arguments  for  and  against 
direct  legislation  much  depends  upon  an  individual's  own 


518      THE  GOVERNMENT  OF  THE  UNITED   STATES 


The 
balance 
of  ad- 
vantage. 


The  recall. 


Early 
provisions 
for  it  in 
American 
history. 


temperament  and  point  of  view.  Some  men  are  politi- 
cally impatient,  disdainful  of  traditions,  oblivious  to  the 
lessons  of  history,  and  intolerant  of  the  scientific  attitude 
in  public  affairs.  Others  are  conservative  in  habits  of 
mind,  their  eyes  so  firmly  fixed  on  the  past  that  they 
fail  either  to  interpret  the  present  or  to  discern  its 
portents  for  the  future,  wedded  to  obsolete  tenets  of 
individualism,  and  obtaining  their  political  nourishment 
from  a  diet  of  musty  formulas.  Between  these  two  ex- 
tremes, prefigured  by  the  radical  and  the  reactionary,  there 
is  every  type  of  mind.  The  facts  as  to  the  working  of  the 
initiative  and  referendum  in  America,  while  themselves 
incontrovertible,  are  thus  subjected  to  a  wide  variety  of 
interpretation.  There  are  no  impartial  authorities  on 
this  subject,  for  the  only  ones  who  remain  impartial  are 
those  who  know  too  little  about  it  to  be  authorities. 

The  recall  is  not  a  necessary  accompaniment  of  the  ini- 
tiative and  referendum,  but  in  many  cases  all  three  have 
been  adopted  simultaneously,  and  in  discussions  of  popular 
government  they  are  commonly  linked  together.  The  recall 
may  be  defined  as  a  process  by  which  any  elective  officer, 
whose  services  are  unsatisfactory  to  those  who  have  elected 
him,  may  be  removed  from  office  by  them  before  the  expi- 
ration of  his  term.  In  principle  this  is  not  a  novelty  in 
American  political  history,  being  at  least  as  old  as  1780, 
for  in  that  year  the  constitution  of  Massachusetts  made 
provision  that  delegates  to  the  Congress  at  Philadelphia 
might  be  "  recalled  at  any  time  .  .  .  and  others  chosen 
...  in  their  stead."  This  provision  was  evidently  copied 
from  the  Articles  of  Confederation,  which  expressly  reserved 
to  each  state  the  power  to  "recall  its  delegates,  or  any  of 
them,  at  any  time.  .  .  ."  In  the  constitution  of  the 
United  States,  however,  no  provision  for  the  recall  of 
senators  or  representatives  was  incorporated,  although 
there  was  some  protest  against  this  omission.  The  idea 
of  choosing  officers  for  short,  but  definite  terms,  without  the 
opportunity  of  removing  them  otherwise  than  by  impeach- 
ment, gained  general  acceptance  after  1787  in  all  branches 


1  Constitution  of  Massachusetts,  ch.  iv. 
repealed  and  unaltered. 


The  provision  still  stands  un- 


DIRECT  LEGISLATION  AND  THE  RECALL          519 

of  American  government  and   continued  throughout  the 
nineteenth  century. 

The  recrudescence  of  the  recall,  this  time  in  a  somewhat  its  revival 
different  form,  has  been   a  feature  of  American  politics  Afferent 
during  the  past  twenty  years.     Its  adoption  was  proposed  form.  . 
in  the  closing  years  of  the  nineteenth  century,  but  it  was 
not  until  1903  that  any  such  adoption  took  place.     In  that 
year  the  city  of  Los  Angeles  made  provision  in  its  charter 
for  the  use  of  the  recall  in  its  municipal  government.     Five 
years  later  the  siate   of  Oregon   made  provision  for  its 
application  to  all  state  officers,  and  since  1908  the  recall  has 
spread  to  nine  other  states  of  the  Union.1 

The  purposes  of  the  recall  are  twofold.  First,  it  is 'objects 
designed  to  give  the  people  a  means  of  removing  from  public  of  tj?.e 
office  any  elective  official  who  may  have  proved  unworthy 
of  their  continued  confidence.  For  gross  malfeasance  an 
official  may  always  be  removed  by  impeachment ;  but 
impeachment  is  a  clumsy  and  slow  method.  Impeachment 
cannot  well  be  employed,  moreover,  except  in  flagrant  cases. 
The  recall  may  be  used  for  any  cause  whatsoever,  and  it  is 
an  expeditious  method  of  removal.  Second,  the  existence  of 
the  people's  right  to  recall  a  public  officer  at  any  time  is 
said  to  operate  as  a  wholesome  reminder  of  preelection 
promises  and  thus  to  keep  every  official  alert  to  the  proper 
performance  of  his  duties. 

The  initial  procedure  in  recalling  any  official  is  the  The  recall 
filing  of  a  petition.  Any  voter  may  do  this.  This  petition  Procedur6: 
assigns  reasons  for  the  requested  removal,  but  the  reasons 
need  not  be  very  definite.  Petitions  must  bear  a  designated 
number  of  signatures,  each  representing  a  qualified  voter, 
but  the  number  of  signatures  differs  from  state  to  state. 
Ordinarily  the  requirement  is  at  least  25  per  cent  of  the 
registered  voters  or  of  the  vote  .cast  at  the  last  preceding 

1  The  other  nine  states  are  California,  Arizona,  Idaho,  Colorado, 
Nevada,  Washington,  Michigan,  Kansas,  and  Louisiana.  In  Idaho, 
however,  the  provision  remains  inoperative  because  the  legislature  has 
not  passed  the  necessary  laws  to  put  the  constitutional  provision  into 
effect.  The  best  brief  treatise  on  the  recall  of  elective  officers  is  that 
contained  in  Bulletin  No.  26,  prepared  for  the  Massachusetts  Con- 
stitutional Convention  (Boston,  1917).  This  Bulletin  contains  a  selected 
bibliography. 


520      THE  GOVERNMENT  OF  THE  UNITED  STATES 

election.  Some  designated  state  officer  counts  the  signatures 
and  compares  them  with  the  names  on  the  voters'  rolls. 
Realizing,  however,  that  an  official  should  not  be  subjected 
to  the  possibility  of  recall  before  he  has  had  time  to  show 
what  he  can  do,  it  is  usually  stipulated  that  no  recall  petition 
shall  be  received  until  at  least  six  months  after  his  installation 
in  office.  In  the  case  of  members  of  the  legislature,  this 
period  of  immunity  is  not  customarily  accorded,  for  that 
would  enable  them  to  finish  a  legislative  session  before  being 
subject  to  removal. 

2.  the  When  a  recall  petition  is  presented,  the  official  against 
official's        whom  it  is  directed  must  at  once  be  notified.     He  has  a 

reply. 

right  to  make  a  reply,  and  this  reply  is  in  some  cases  required 
to  be  printed  on  the  ballot  when  the  question  of  his  removal 
goes  before  the  people.     He  may,  on  the  other  hand,  resign 
\  his  office  without  choosing  to  fight  the  issue  at  the  polls. 

3.  the  Within  a  designated  time  after  a  petition  has  been  filed, 
recall           a  recall  election  is  held.     The  interval  is  usually  from  one 

to  three  months.  The  ballot  at  this  election  may  contain  a 
statement  of  the  grounds  alleged  for  the  removal,  and  also 
the  official's  reply  thereto.  It  is  usually  provided,  however, 
that  neither  of  these  statements  shall  contain  more  than 
two  hundred  words.  The  ballot  also  indicates  the  name  of 
the  official  whose  removal  is  sought  and  the  names  of  such 
candidates  as  may  have  been  nominated  in  opposition  to 
him.  In  some  states,  Oregon  for  example,  an  official  is 
deemed  to  be  recalled  if  he  fails  to  obtain  a  plurality  of 
votes  over  these  opposing  candidates.  In  other  states,  as 
in  California,  the  question  of  recalling  the  officer,  yes  or 
no,  is  put  first  on  the  ballot,  and  it  is  only  when  a  majority 
of  the  voters  answer  this  question  in  the  affirmative  that 
the  counting  of  the  votes  cast  for  the  various  candidates 
is  proceeded  with.  When  an  official  successfully  defends 
himself  against  an  attempt  to  bring  about  his  recall,  it  is 
sometimes  provided  that  he  shall  be  reimbursed  from  the 
public  treasury  for  his  necessary  expenses  in  connection 
with  the  recall  election. 

No  state  Although  the  state-wide  recall  has  been  in  existence  for 

*en  years>  no  state  official  has  yet  been  removed  by  this 
procedure.  It  is  a  fair  inference  from  this  fact  that  there 


DIRECT  LEGISLATION  AND  THE  RECALL          521 

are  practical  obstacles  to  its  frequent  use  and  that  the 
recall  will  not,  in  all  likelihood,  be  employed  as  an  everyday 
means  of  getting  men  ousted  from  office. 

A  good  deal  has  been  said  and  written  as  to  the  reputed  Merits  and 
merits  and  dangers  of  the  recall,  as  applied  to  state  govern- 
ment,  but  these  discussions  rest  upon  no  solid  ground  of 
actual  experiments.  The  recall  has  obvious  possibilities  for 
good  if  rightly  used,  and  equally  obvious  possibilities  for 
harm  if  employed  vindictively.  But  so  long  as  it  remains 
unused  altogether  we  have  no  way  of  knowing  which  of 
these  possibilities  is  apt  to  be  realized. 


CHAPTER  XXXVI 


State  gov- 
ernment 
has  been 
less  satis- 
factory 
than  is 
commonly 
realized. 


Reasons 
for  this 
situation. 


THE  RECONSTRUCTION  OF  STATE   GOVERNMENT 

SURVEYING  American  state  government  as  a  whole,  what 
are  its  most  obvious  defects  and  by  what  steps  may  they  be 
remedied?  There  is  a  widespread  but  not  at  all  well- 
founded  impression  that  state  government  in  the  United 
States  has  been  tolerably  satisfactory.  One  reason  for  this, 
no  doubt,  may  be  found  in  the  fact  that  municipal  govern- 
ment was  for  many  decades  a  far  more  conspicuous  failure 
and  hence  engrossed  the  attention  of  reformers.  The  weak- 
ness of  state  government,  moreover,  has  been  to  some 
extent  screened  and  retrieved  by  the  relative  excellence  of 
the  federal  system.  By  the  steady  expansion  of  its  authority 
the  national  government  has  taken  over  and  has  adminis- 
tered with  comparative  efficiency  many  functions  which, 
had  they  been  left  to  the  states,  would  undoubtedly  have 
been  handled  so  unskilfully  as  to  bring  the  inaptitudes  of 
state  government  into  a  far  bolder  relief. 

The  shortcomings  of  state  government  are  due  in  part  to 
faulty  organization.  This  is  not  to  imply,  however,  that  the 
thirteen  original  states  framed  their  constitutions  unwisely. 
They  began  with  a  frame  of  government  which  was  not 
unsuited  to  the  needs  of  pioneer  communities  in  the  closing 
decades  of  the  eighteenth  century.  The  chief  and  almost 
the  only  function  of  a  state  government  in  those  days  was 
to  make  laws.  The  original  states  adopted  a  mechanism 
which  was  well  suited  to  the  performance  of  that  function. 
But  the  making  of  laws  has  long  since  ceased  to  be  the  chief 
work  of  the  state.  Administration  in  all  its  branches, 
particularly  in  its  application  to  social,  economic,  and 
humanitarian  activities,  has  grown  to  huge  proportions  and 
now  quite  overshadows  all  else. 

522 


THE  RECONSTRUCTION  OF  STATE  GOVERNMENT     523 

Yet   the  states   continue   to    attempt    the   proper   per-  state 
formance  of  the  new  tasks  with  the  old  machinery.     They 
are  trying  to  carry  forward  huge  administrative  and  busi-  grown  the 
ness  enterprises  with  appliances  which  were  designed  for  the  machinery 
making  of  laws  and  for  the  general  safeguarding  of  popu- 
lar liberties.     It  is  the  ancient  fault  of  putting  new  wine  into 
old  bottles.     The  traditional  mechanism  has  been  patched 
up,  added  to,  and  otherwise  tinkered  with,  so  that  it  has 
not  entirely  broken  down  under  the  new  load ;  but  in  no 
state  has  it  been  entirely  overhauled  and  reconstructed. 

The  tinkering  process  has  been  carried  on  mainly  by  Theessen- 
means  of  constitutional  revision  and  amendment.     Com-  tl{*1.s,of  f 

.      .  f  .  satisfactory 

pared  with  the  organic  instrument  of  the  nation  the  state  reconstmc- 
constitutions  are  easy  to  change.     In  some  states,  indeed,  tlon: 
the  process  of  altering  the  constitution  has  become  so  simple  1-  fewer 


constitu- 


that  the  temptation  to  incessant  alteration  is  very  strong,  tkmai 
too  strong  to  be  resisted.     The  state  constitution  in  such 
cases  becomes  an  ephemeral  affair,  without  any  essentially  in  the  way 
fundamental  character,  and  without  the  halo  which  should 
surround  a  supreme  law. 

Back  in  the  middle  of  the  nineteenth  century  a  cus- 
tomer once  asked  a  Paris  bookseller  for  a  copy  of  the 
French  Constitution.  "We  do  not  deal  in  periodical 
literature,"  the  bookseller  replied.  American  state  con- 
stitutions have  gone  into  this  periodical  class.  Details 
of  governmental  organization,  even  to  the  salaries  of  offi- 
cials, clutter  up  their  pages.  Limitations  of  every  con- 
ceivable sort  are  crowded  into  these  documents  until  the 
legislature,  the  governor,  the  administrative  departments, 
and  even  the  courts  find  themselves  without  sufficient 
elbow  room  for  the  satisfactory  performance  of  their  re- 
spective duties.  The  demand  for  changes  in  this  or  that 
detail  is  incessant.  The  reconstruction  of  state  government 
must  begin,  accordingly,  with  the  state  constitution  itself. 

Constitution-makers  should  return  to  an  appreciation  of  The  need  of 
the  true  purpose  and  the  proper  scope  of  a  constitution,  firg^prin-0 
which  is  to  set  forth  the  basic  principles  of  government,  not  cipies  fn 
to  provide  a  code  of  laws.     There  is  no  need  for  the  relentless  g£tution- 
piling  on  of  limitations.     Neither  the  liberty  of  the  individual  making. 
nor  the  welfare  of  the  community  demands  it.     The  limi- 


524      THE  GOVERNMENT  OF  THE  UNITED  STATES 


2.   less 
reverence 
for  the 
formula 
of  division 
of  powers. 


Merits  and 
defects  of 
this  for- 
mula in  its 
practical 
application. 


tations  which  stand  in  the  federal  constitution  are  relatively 
few,  yet  who  will  say  that  the  rights  of  the  citizen  are  not 
fully  guarded  there  ?  Who  will  assert  that  the  states,  with 
their  constitutions  a  hundred  pages  long,  have  more  effec- 
tively precluded  the  abuse  of  legislative,  executive,  or  judi- 
cial power? 

The  time  has  come,  moreover,  for  a  resurvey  of  the 
doctrine  of  checks  and  balances  in  its  practical  workings. 
During  the  second  half  of  the  nineteenth  century  it  was 
accounted  a  political  heresy  to  question  the  infallibility  of 
this  dogma.  It  was  hailed  as  the  very  corner-stone  of 
American  democracy.  To  get  rid  of  it  seemed  an  impos- 
sibility. As  well  might  one  move  to  repeal  the  law  of 
gravitation.  To-day,  however,  this  attitude  is  visibly 
changing.  Montesquieu's  aphorism  that  "  power  must  be 
a  check  to  power "  has  been  repudiated  entirely  in  the 
reconstructed  charters  of  several  hundred  American  cities, 
and  is  now  being  rudely  assailed  as  an  obstacle  to  the  efficient 
government  in  some  of  the  states  as  well.  Not  alone  political 
philosophers  but  men  of  long  experience  in  the  actual  work 
of  state  administration  have  in  some  cases  concluded,  on 
due  reflection,  that  the  triple  division  of  governmental 
powers  is  a  delusion  and  a  snare. 

A  government  organized  upon  the  principle  of  checks  and 
balances  derives  both  strength  and  weakness  therefrom. 
Division  of  powers  makes  for  safety.  It  provides  the  ship 
of  state  with  water-tight  compartments.  When  one  com- 
partment floods,  the  others  hold  firm,  keeping  the  craft 
afloat  and  on  its  course.  So  long  as  the  balance  of  powers 
is  preserved,  no  one  branch  of  government  can  arrogate  to 
itself  any  dangerous  excess  of  authority.  But  on  the  other 
hand,  the  system  of  tripartite  supremacy  means  that  there 
can  be  no  full  concentration  of  responsibility  for  what  is 
done,  that  the  public  interest  is  likely  to  suffer  whenever 
the  three  departments  fail  to  work  in  harmony,  and  that 
the  community  as  a  whole  can  have  no  effective  public 
leadership. 

Is  it  well  that  these  three  great  essentials  of  good 
government,  responsibility,  harmony,  and  leadership,  should 
be  sacrificed  for  the  assurance  of  safety?  In  the  case 


THE  RECONSTRUCTION  OF  STATE  GOVERNMENT     525 

of  the  federal  government  that  question  might  well  be 
answered  affirmatively,  for  its  establishment  represented  a 
novel  and  precarious  experiment.  The  states  were  asked 
to  give  over  great  powers  and  they  were  wise  in  taking 
no  chance  that  a  despotic  exercise  of  this  vast  authority 
should  some  day  dissipate  all  that  the  Revolution  had  won. 
The  land  had  not  shaken  off  an  hereditary  despotism  in 
order  that  it  might  establish  an  elective  one  in  its  stead. 
Safety  first  was  therefore  an  appropriate  rule  in  the  planning 
of  the  national  government.  But  whether  it  ought  to  be 
given  anything  like  so  much  weight  to-day  is  quite  another 
question. 

There  is  no  likelihood,  however,  that  any  successful 
assault  can  be  made  upon  the  principle  of  checks  and 
balances  so  far  as  the  federal  government  is  concerned. 
That  would  involve  the  entire  rewriting  of  the  national  con- 
stitution, which  is  something  that  the  present  generation  will 
probably  never  live  to  see.  It  is  a  good  deal  easier  to  pick 
flaws  in  the  constitution  of  the  United  States  than  it  is  to  get 
even  a  small  body  of  men  to  agree  upon  a  substitute. 

But  in  the  case  of  the  state  governments  the  situation  is  in  state 
in  all  respects  different.     The  great  advantage  of  divided  gove"j7 

••••••i  •  •    -i  IHGIlt   tllG 

governmental  powers,  which  is  that  it  provides  an  assurance  merits  dis- 
against  despotism,  counts  for  far  less  in  the  states  than  in  aPPear- 
the  nation.     The  national  constitution  guarantees  to  every 
state  "a  republican  form  of  government,"  which  means  that 
the  whole  strength  of  the  Union  is  available  to  protect  the      • 
people  of  each  state  from  any  gross  infringement  of  their 
liberties.     So  long  as  a  system  of  free  government  is  main- 
tained in  the  nation  as  a  whole,  the  danger  of  despotism  in 
any  state  is  purely  fanciful.     The  chief  argument  in  favor 
of  division  of  powers  in  state  government  thus  falls  to  the 
ground. 

On  the  other  hand  the  disadvantages  of  the  divided  system  And  the 
are  far  greater  in  state  than  in  national  government.  Ad- 
ministration  bulks  relatively  larger  among  state  functions 
and  includes  matters  of  a  far  greater  variety.  The  party 
system,  moreover,  which  has  served  to  provide  an  extra- 
legal  coordinating  force  in  national  affairs  has  not  succeeded 
in  doing  so  to  the  same  degree  at  the  state  capitals.  Finally, 


526      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  logical 
conclusion. 


But  if 
the  divi- 
sion of 
powers  be 
abandoned, 
what  then? 

The  two 
alterna- 
tives: 


(a)  legis- 
lative 
supremacy. 


the  states  have  pressed  the  principle  of  checks  and  balances 
to  an  extreme  length,  establishing  a  division  of  powers  not 
only  as  between  the  legislative,  executive  and  judicial  organs 
of  government  but  even  within  the  executive  branch  itself. 
In  the  national  system  the  President  remains  the  supreme 
administrative  authority,  sharing  his  powers  with  no  one 
else.  But  the  state  governor,  as  has  been  shown,  occupies 
no  such  position.  Administrative  authority  in  most  of  the 
states  is  so  hopelessly  disintegrated  that  it  may  fairly  be  said 
to  portray  a  system  of  checks  and  balances  run  riot. 

It  would  appear,  therefore,  that  division  of  powers  is  not 
needed  by  the  states  in  the  interest  of  safety,  that  it  is  the 
mainspring  of  clouded  responsibility  and  the  absence  of 
vigorous  leadership  in  state  government,  that  it  has  been 
blindly  carried  to  an  extreme  in  the  decentralizing  of  execu- 
tive power,  and  that  it  should  give  place  to  some  plan  of 
concentrated  authority. 

But  by  what  type  of  organization  might  the  present 
system  be  replaced  ?  Two  courses  are  open.  The  legislative 
branch  of  state  government  might  be  restored  to  a  position 
of  supremacy  and  given  full  control  of  the  executive,  or  the 
powers  of  the  executive  can  be  concentrated  and  increased 
until  the  legislature  becomes  a  wholly  secondary  organ.  On 
the  face  of  it  the  former  alternative  would  seem  to  be  not 
only  more  in  harmony  with  American  traditions  and  tem- 
perament, but  in  keeping  with  the  practice  of  responsible 
government  in  other  countries.  Nevertheless  the  develop- 
ment of  American  state  government  during  the  past  thirty 
or  forty  years  has  been  altogether  in  the  other  direction. 
The  legislatures  have  been  sinking  to  a  secondary  place  in 
the  control  of  public  policy.  Constitutional  conventions 
have  been  steadily  circumscribing  their  sphere  of  influence 
while  the  progress  of  the  executive  branch  to  greater  prestige 
and  power  has  gone  forward  unchecked.  Notwithstanding 
its  disintegration  the  executive  branch  of  state  government 
is  nearly  everywhere  the  more  vigorous,  the  more  influential 
and  the  more  secure  in  public  confidence  to-day.  It  is 
altogether  unlikely  that  this  movement  can  be  halted  and 
a  march  begun  in  the  opposite  direction.  Whatever  the 
logic  of  the  situation  one  must  face  the  obvious  fact  that  a 


THE  RECONSTRUCTION  OF  STATE  GOVERNMENT     527 

distrust  in  the  capacity  and  in  the  integrity  of  legislatures  Hardly  a 
is  one  of  the  most  deep-seated  of  American  political  con-  ^l^1 
victions.     Being  founded  upon  abundant  reason,  moreover,  present, 
this  conviction  is  not  likely  to  pass  away.     No  scheme  of 
reconstruction,  therefore,  is  likely  to  gain  much  popular 
support  if  it  is  postulated  upon  that  principle  of  legislative 
supremacy  which  is  frankly  accorded  recognition  in  most 
other  countries. 

The  other  alternative,  that  of  elevating  the  executive  (fe)  execu- 
branch  of  state  government  to  a  place  where  it  will  be  in  tlve 

_  ,       _  t_       i         •  -i  -i    •        i  supremacy. 

law  as  in  fact  the  dominant  arm,  would  in  the  end  produce 
an  anachronism  of  political  science.  Yet  the  general  use  of  The  drift 
direct  legislation,  the  adoption  of  executive  budget  systems, 
the  extension  of  the  governor's  veto  power,  and  the  con- 
solidation of  boards  and  commissions,  are  all  manifestations 
of  waning  confidence  in  legislatures  and  waxing  trust  in 
the  executive.  It  is  in  recognition  of  this  fact  that  various 
schemes  for  the  reduction  of  the  legislature  to  a  single  cham- 
ber and  for  making  that  chamber  a  mere  legislative  commis- 
sion have  been  materializing  in  recent  years. 

The  most  radical  of  these  proposals  is  that  made  by  Somecon- 
the  governor  of  Kansas  in  1913.     He  suggested  that  the  J^posais- 
executive  organization  of  the  state  be  left  without   any  (a)  the 
change,    but    that    the    double-chambered    legislature    be  Kansas 
abolished.     In  its  place  it  was  proposed  to  establish  an  plan' 
elective  commission  made  up  of  sixteen  members,  two  from 
each  of  the  eight  congressional  districts  of  the  state  with 
terms  of  four  or  six  years,  the  governor  to  be  an  ex  officio 
member  of  this  body  and  to  preside  at  its  sessions.     The 
function  assigned  to  the  commission  was  to  be  that  of  law- 
making  only,  and  it  was  argued  that  the  proper  performance 
of  this  task  would  take  up  the  entire  time  of  its  members 
every  working  day  in  the  year.     Accordingly  the  commis- 
sioners were  to  be  amply  paid. 

This  Kansas  plan  found  its  inspiration,  of  course,  in  the  A  halfway 
commission  form  of  government  which  many  cities  have 
adopted  with  highly  advantageous  results  during  the  past 
dozen  years.  But  it  goes  only  half  the  distance  covered 
by  the  latter  in  that  it  leaves  the  executive  branch  of 
state  government  wholly  outside  the  commission's  sphere  of 


528      THE  GOVERNMENT  OF  THE  UNITED  STATES 


(6)  the 
Oregon 
plan. 


Public 
opinion 
not  yet 
ready  for 
a  radical 
overhaul- 
ing of 
state 
framework. 


authority.  Commission  government  as  applied  to  cities 
involves  not  only  the  reconstruction  of  the  municipal  legis- 
lature but  the  complete  telescoping  of  both  legislative  and 
executive  organs  into  a  single  authority.  The  Kansas  plan, 
being  a  halfway  measure,  did  not  command  the  general 
favor  of  reformers,  and  needless  to  say  it  was  not  cordially 
received  by  the  legislature  which  the  scheme  proposed  to 
abolish.  It  is  significant,  however,  that  any  su.ch  suggestion 
should  be  seriously  put  forward  by  a  man  of  experience  in 
high  state  office.  Twenty  years  ago  a  project  of  this  sort 
would  have  been  ridiculed  as  preposterous  and  irrational. 

Rather  less  radical  in  the  way  of  legislative  reconstruction 
is  the  plan  which  was  brought  forward  by  the  People's 
Power  League  in  Oregon  some  years  ago,  but  the  essentials 
of  which  were  defeated  by  the  people  at  the  polls.  The  most 
conspicuous  feature  of  the  Oregon  plan  was  the  proposal  to 
abolish  the  two-house  legislature  in  favor  of  a  single  chamber 
made  up  of  sixty  members,  with  provision  for  minority 
representation.  In  connection  with  this  abolition  of  the 
bicameral  system  it  was  proposed  to  increase  greatly  the 
strength  and  influence  of  the  executive.  The  governor  was 
to  be  intrusted  with  the  appointment  of  all  heads  of  depart- 
ments, other  high  officials  and  boards.  He  and  his  cabinet 
(made  up  of  the  chief  state  officials)  were  to  have  seats  in 
the  one-house  legislature.  He  was  to  have  the  sole  power 
to  initiate  all  measures  for  the  spending  of  money  but  no 
longer  to  have  the  right  of  veto  in  any  matter.  The  Oregon 
plan,  accordingly,  while  less  radical  than  the  Kansas  pro- 
posal so  far  as  legislative  reconstruction  is  concerned, 
provided  for  a  much  more  drastic  change  in  the  position 
and  powers  of  the  executive.  As  a  whole  it  was  never 
submitted  to  the  people  for  their  approval,  but  various  parts 
of  it,  including  the  proposal  for  a  single  chamber,  were 
placed  upon  the  ballot  and  defeated. 

In  none  of  the  states  does  public  opinion  seem  to  be  ready 
for  any  drastic  alteration  in  the  organization  of  the  legislature 
or  for  any  great  and  sudden  curtailment  of  its  powers,  al- 
though minor  changes  in  both  directions  are  being  made  year 
by  year.  The  real  initiative  in  legislation  is  gradually 
passing  into  executive  hands,  chiefly  because  the  people  are 


THE  RECONSTRUCTION  OF  STATE  GOVERNMENT     529 

looking  more  and  more  to  the  governor  for  aggressive  leader- 
ship in  the  formulation  and  carrying  through  of  public 
policy.  Governors  on  the  whole  have  been  less  susceptible 
than  legislatures  to  the  control  of  political  bosses  and  more 
ready  to  assume  full  responsibility.  They  have  more 
promptly  sensed  the  drift  of  popular  sentiment  and  have 
been  more  responsive  to  it. 

Without  any  organic  changes  there  are  ways  in  which  the  How  iegis- 
work  of  legislatures  may  be  improved  and  their  prestige 
with  the  people  restored.  One  agency  of  improvement,  as  proved 
several  states  have  discovered,  is  a  bureau  of  legislative 
reference  with  facilities  for  giving  expert  assistance  in  the  ingiegis- 
drafting  of  laws.  Legislatures  are  judged  by  the  products  latures- 
which  they  turn  out,  and  these  have  hitherto  left  much  to  be 
desired.  The  proper  drafting  of  a  law  is  not  merely  a  matter 
of  clearness  in  phraseology.  It  involves  a  thorough  knowl- 
edge of  the  conditions  to  which  the  law  is  to  apply ;  in  many 
cases  it  also  necessitates  a  careful  study  of  laws  already 
enacted  in  the  same  field  so  that  there  may  be  no  unin- 
tentional conflict ;  and  always  it  demands  a  full  apprecia- 
tion of  whatever  constitutional  restrictions  there  may  be.  In 
the  drafting  of  a  law  it  is  almost  always  possible  to  obtain 
profitable  guidance  from  the  experience  of  other  states  both 
as  to  what  should  be  provided  and  what  left  out.  The  work 
is  technical  to  a  far  greater  degree  than  legislators  have 
realized,  and  it  ought  to  be  intrusted  to  professional  hands. 
The  legislative  reference  and  bill-drafting  bureau  is  there- 
fore an  institution  which  should  be  provided  for  in  all  the 
states,  not  merely  in  some  of  them. 

More  essential  to  good  government  than  any  readjustment  3.  the 
of  the  relations  between  governor  and  legislature,  however,  tJ^fda" 
is  the  reorganization  of  the  machinery  by  which  the  vast  and  administra- 
varied  administrative  work  of  the  state  is  now  carried  on.  *J™  agen" 
This  machinery,  as  has  been  shown,  is  extensive  and  intricate, 
consisting  of  departments,  boards  and  officials  by  the  score. 
It  has  been  built  up  without  plan  or  set  purpose.     In  scarcely 
a  state  of  the  Union  does  the  scheme  of  Administrative 
organization  conform  to  the  simplest  requirements  of  unity 
and    cooperation.     It    embraces    merely    a    heterogeneous 
group  of  disjointed  authorities,  with  the  lines  of  responsi- 

2  M 


530      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Proposals 
and  prog- 
ress in 
this  direc- 
tion during 
recent 
years. 

The  obsta- 
cles which 
have  been 
encoun- 
tered: 

(a)  consti- 
tutional 
barriers. 


(6)  opposi- 
tion of 
state 
officials. 


bility  running  in  all  directions,  with  powers  which  are 
ill  defined  and  functions  which  overlie,  and  with  no  means 
of  working  in  unison.  The  situation  in  New  York  State  is 
perhaps  worse  in  degree  but  not  widely  different  in  nature 
from  that  which  exists  elsewhere.  There,  as  a  distinguished 
student  of  statecraft  remarked  a  few  years  ago, "  anybody 
can  see  one  hundred  and  fifty-two  outlying  administrative 
agencies,  big  and  little,  lying  around  loose,  accountable  to 
nobody,  spending  all  the  money  they  can  get,  and  violating 
every  principle  of  economy,  of  efficiency,  and  of  the  proper 
transaction  of  business."  1 

The  simplification  of  state  administrative  machinery  has 
been  earnestly  urged  by  governors  in  all  parts  of  the  country 
during  the  last  few  years.  Their  annual  messages  have  had 
more  to  say  on  this  than  on  any  other  topic  except  the  War 
and  its  problems.  Legislatures  have  been  responsive  to  the 
extent  of  having  the  question  studied  by  special  commissions 
or  committees,  but  there  the  matter  has  usually  ended.  One 
reason  for  this  is  to  be  found  in  the  fact  that  projects  of 
administrative  reform  usually  require  changes  in  the  state 
constitution.  These  constitutions  have  grown  to  be  so 
all-embracing  that  they  have  literally  stereotyped  the  num- 
ber, the  method  of  selection,  the  tenure,  the  powers,  and 
sometimes  even  the  salaries  of  the  various  boards  and 
officials.  In  such  cases  the  governor  and  the  legislature, 
even  when  they  agree,  are  powerless  to  do  any  considerable 
overhauling. 

But  even  where  constitutional  obstacles  do  not  stand  in 
the  way  the  legislatures  have  been  slow  to  act.  Opposition 
to  any  radical  consolidation  of  the  existing  administrative 
departments  comes  chiefly  from  the  officials  of  these  depart- 
ments themselves,  a  considerable  proportion  of  whom  are 
or  have  been  prominent  party  leaders.  Their  influence  with 
the  legislature,  when  they  oppose  reform  unitedly,  is  very 
great,  and  in  most  of  the  states  it  has  proved  to  be  the  chief 
practical  hindrance  to  administrative  reconstruction.  The 
wholesale  consolidation  of  departments  and  boards  has  been 
proposed  in  a  score  of  states,  but  in  only  one  or  two  of  them 

1  Speech  of  the  Hon.  Elihu  Root  in  the  New  York  Constitutional 
Convention  of  1915. 


THE  RECONSTRUCTION  OF  STATE  GOVERNMENT     531 

has  it  been  accomplished.  Illinois  and  New  Jersey  are  the 
states  where  the  progress  towards  the  simplification  and  the 
general  improvement  of  the  administrative  mechanism  has 
been  most  conspicuous.  Other  states,  however,  are  certain 
to  follow  in  their  wake,  for  the  situation  is  plainly  in  need  of 
reform. 

The  reconstruction  of  state  government  must  not,  how-  4.  less 
ever,  confine  itself  to  official  machinery  alone.     The  party  J^^ty 
system,  whether  legally  so  recognized  or  not,  is  a  factor  of  party 
high  importance  in  the  actual  workings  of  state  government  8yst< 
and  should  not  be  left  outside  the  reckonings  of  reform. 
Much  criticism  has  been  bestowed  upon  the  system  of  party 
organization,  but  not  all  of  it  has  been  deserved.     Some 
reformers  complain  that  the  party  organizations  are  domi- 
nated by  bosses  who  pay  no  attention  to  the  demands  of 
public  opinion ;  others  make  it  their  grievance  that  party 
leaders    truckle    to    every   popular    whim    and    are    too 
spineless  to  stand  up  for  their  own  conceptions  of  sound 
public  policy.     Both  these  complaints  can  scarcely  be  well 
founded. 

The  chief  shortcomings  of  party  organization,  as  a  matter  Party  or- 
of  fact,  do  not  arise  from  the  perverseness  of  leaders,  whether  j^fnot118 
despots  or  demagogues,  but  from  the  fact  that  the  laws  of  been  fairly 
the  land  have  been  inclined  either  to  ignore  the  existence  ^^y* 
and  influence  of  parties  altogether  or  else  to  treat  party  under- 
organizations  in  a  wholly  suspicious  or  hostile  spirit.     Law-  stood- 
makers  have  not  appreciated  the  fact  that  parties  must 
exist  in  a  democracy  and  that  the  only  choice  is  between 
compelling  them  to  be  helpful  and  permitting  them  to 
develop  abuses.     No  phase  of  American  state  government 
has  had  so  little  earnest  study  as  the  party  system.     The 
tendency  has  been  to  look  upon  party  politics  as  the  soiled 
dove  among  public  activities,  something  to  be  spoken  of 
only  in  terms  of  apology  or  denunciation.     "It  is  much 
easier,"  as  President  Lowell  has  pointed  out,  "to  bring  a 
railing  accusation  against  men  or  institutions  than  to  ascer- 
tain how  far  they  are  a  natural  product  of  the  conditions  in 
which  they  exist.     To  the  scientific  mind  every  phenomenon 
is  a  fact  that  has  a  cause,  and  it  is  wise  to  seek  that  cause 
when  attempting  to  change  the  fact.     The  need  of  scientific 


532      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Some 
results 
of  this 
unfriendly 
attitude. 


Party  or- 
ganizations 
should  be 
encouraged, 
not  ignored 

or  re- 


investigation  is  as  great  in  the  case  of  parties  as  of  any  other 
phenomenon  in  politics." 1 

One  great  result  of  this  failure  to  appreciate  the  real 
function  and  the  potential  usefulness  of  parties  is  the 
practically  complete  failure  of  the  various  attempts  which 
have  been  made  to  impair  their  influence.  Twenty  or  thirty 
years  ago  the  Australian  ballot  was  welcomed  as  a  device 
which  would  shatter  the  grip  of  the  party  organization  upon 
the  voter  and  restore  him  to  a  position  of  independence. 
But  this  ballot  has  not  broken  down  the  strength  of  party 
organizations  in  any  appreciable  degree.  Somewhat  later, 
the  direct  primary  took  its  turn  in  public  favor  as  the  in- 
strument which  would  really  break  the  chains  of  partisan 
bondage.  This  new  method  of  nominating  public  officers 
has  demonstrated  some  features  of  superiority  over  the  old 
caucus  or  convention  system;  but  it  has  signally  failed  to 
attain  its  main  objective.  It  has  increased  the  number  of 
pollings  and  by  so  doing  has  helped  to  fatigue  the  electorate 
to  a  point  where  public  interest  is  more  deficient  than  it 
was  before.  The  party  leaders  control  the  nominations  as 
securely  as  ever,  the  only  difference  being  that  they  can  now 
disclaim  all  responsibility  for  the  outcome.  > 

The  time  has  come,  therefore,  to  make  a  truce  with 
partyism,  to  take  it  into  camp  as  an  ally,  not  an  enemy,  of 
responsible  government,  to  recognize,  legalize,  and  sympa- 
thetically regulate  it.  In  the  reconstruction  of  state  govern- 
ment the  aim,  so  far  as  party  functions  are  concerned,  should 
not  be  to  destroy  but  to  fulfil.  Constitutions  and  laws 
should  lend  their  assistance  to  the  upbuilding  of  strong 
political  parties  with  regularized  organizations.  These 
organizations  should  be  recognized  as  integral  factors  in 
actual  government  and  dealt  with  accordingly.  They 
should  be  given  such  measure  of  friendly  consideration  with 
respect  to  their  proper  and  necessary  functions  as  is  accorded 
the  courts.  Constitutions  and  laws  should  be  no  more 
ruthlessly  hostile  to  the  one  than  to  the  other.  They  should 
recognize  that  parties  need  leaders  and  ought  to  be  provided 
with  a  rightful  way  of  choosing  them.  These  posts  of  leader- 
ship should  be  dignified  in  keeping  with  the  real  power  which 
1  Public  Opinion  and  Popular  Government  (N.  Y.,  1913),  p.  101. 


THE  RECONSTRUCTION  OF  STATE  GOVERNMENT     533 

they  represent,  and  no  longer  treated  as  representing  a 
species  of  political  usurpation.  It  is  time  to  recognize,  more- 
over, that  party  organizations  need  money,  and  that  they 
should  be  provided  with  convenient  and  lawful  means  of 
obtaining  it.  The  need,  in  a  word,  is  for  less  repression  and 
more  encouragement.  One  obvious  way  to  keep  party 
organizations  from  going  wrong  is  to  make  it  more  easy  for 
them  to  go  right. 

Another  field  of  state  government  in  which  a  considerable  5.  integra- 
reorganization  has  become  essential  is  that  of  finance.  If  financial 
the  states  are  to  keep  taking  on  new  functions  and  par-  policy, 
ticularly  if  they  embark  upon  comprehensive  programmes  of 
social  insurance,  as  they  are  altogether  likely  to  do,  they 
must  have  far  more  money  to  spend.  This  means  that  new 
and  lucrative  sources  of  revenue  must  be  sought  and  found. 
Between  the  levies  of  the  national  government  on  the  one 
hand  and  those  of  the  municipalities  on  the  other,  the  field 
of  taxation  which  the  states  may  readily  exploit  is  not  a  wide 
one,  hence  the  task  of  finding  new  sources  of  revenue  which 
can  be  utilized  without  economic  or  social  injustice  is  one  of 
the  most  difficult  that  confronts  the  states  to-day.  It  is  here 
more  than  in  any  other  field  of  reconstruction  that  there  is 
need  for  the  highest  grade  of  expert  leadership.  Following 
the  dictates  of  class  prejudice,  or  seizing  in  haphazard  fashion 
upon  any  source  of  revenue  which  looks  attractive  at  the 
moment,  are  not  the  right  steps  to  a  sound  and  permanent 
financial  policy.  When  legislators  pass  from  the  domain  of 
politics  to  that  of  economics,  there  is  an  especial  reason  for 
moving  circumspectly;  yet  opportunism  and  favoritism 
rather  than  careful  planning  or  expert  counsel  have  too  often 
been  the  determining  factors  in  the  discovery  of  new  state 
revenues. 

Finally,  no  programme  of  reconstruction  will  assure  im-  G.  the 
provement  in  the  quality  of  state  government  if  it  begins  and  b^e^ten 
ends  in  changes  of  mechanism  alone.     There  can  be  no  con-  ment  of 
siderable  regeneration  if  the  fundamental  factor  in  all  demo- 
cratic  government,  the  voter  himself,  is  left  out  of  the  reckon- 
ing.   The  patent  medicines  of  politics,  including  the  initiative 
and  referendum,  the  recall,  direct  primaries,  short  ballots, 
proportional    representation,    civil    service,    administrative 


534      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  mere 
reconstruc- 
tion of 
machinery 
will  not 
avail. 


consolidations,  segregated  budgets,  woman  suffrage  —  and 
all  the  rest  —  may  be  useful  so  far  as  they  go ;  but  no  one 
of  them  or  all  of  them  put  together  will  ever  make  a  real 
democracy  out  of  an  ignorant,  indifferent,  or  unthinking 
electorate.  So  long  as  the  masses  of  the  voters  remain 
befogged  as  to  the  real  issues  at  stake,  so  long  as  the  mecha- 
nism of  the  state  remains  unintelligible  to  them,  just  so  long 
will  they  be  altogether  likely  to  have  "unpopular7'  govern- 
ment, which  has  been  well  denned  as  "a  government  of  the 
few,  by  the  few,  and  for  the  few,  at  the  expense  and  against 
the  wish  of  the  many."  * 

The  maintenance  of  oligarchic  government  does  not  in- 
volve the  open  and  avowed  placing  of  power  in  the  hands  of 
a  class.  Power,  when  avowedly  vested  in  the  masses,  may 
stealthily  gravitate  into  a  few  hands,  indeed  its  inveterate 
tendency  is  to  do  so  unless  the  utmost  vigilance  is  exercised. 
The  inclination  of  all  government  is  towards  tyranny,  whether 
it  be  tyranny  of  one,  or  of  the  few,  or  of  a  majority.  That 
is  a  law  of  political  science  and  human  nature.  A  clear 
appreciation  of  that  axiom  was  the  greatest  asset  the  framers 
of  the  federal  constitution  possessed.  According  to  their 
lights  they  set  up  various  barriers  to  what  they  regarded  as 
an  inevitable  tendency,  and  these  safeguards  have  helped 
greatly,  even  if  they  have  not  proved  altogether  adequate. 
No  purely  mechanical  devices,  however,  will  fully  avail  to 
prevent  the  perversion  of  democracy  into  oligarchy  on  the 
one  hand  or  mobocracy  on  the  other.  Such  assurance  can 
be  provided  only  by  the  political  education  of  the  voters. 
This  work  has  been  the  last  and  least  among  the  functions  of 
the  state ;  it  ought  to  be  the  first  and  most  important. 

The  greatest  merit  of  democratic  government  is  not  its 
efficiency  or  its  cheapness,  but  its  possibilities  in  the  way  of 
contenting,  unifying,  and  educating  the  people.  When  such 
a  government  fails  to  utilize  these  possibilities,  it  cuts  away 
the  chief  justification  of  its  existence. 

1  Albert  M.  Kales,  Unpopular  Government  in  the  United  States  (Chicago, 
1914),  p.  7. 


CHAPTER  XXXVII 

THE  HISTORY  OF   LOCAL  GOVERNMENT 

"MUNICIPAL  institutions,"  says  De  Tocqueville,  "con-  The 
stitute  the  strength  of  free  nations."     History  has  demon-  ^ 
st rated  the  truth  of  this  assertion.     It  was  in  the  areas  seif- 
of  local  government  that  representative  institutions  first 
developed.     Local  democracy  arose  in  the  English  township, 
borough,  and  shire  long  before  the  government  of  the  nation 
became  free  even  in  form.     It  was  in  these  local  areas  that 
men  first  became  familiar  with  the  principles  of  civil  liberty, 
and  it  was  there  that  they  obtained  their  first  lessons  in  free 
government  as  a  practical  art. 

When  Englishmen  first  came  to  America,  their  own  local  The 
institutions  had  been  in  existence  for  at  least  seven  centuries 
and  had  thus  become  an  integral  part  of  the  national  life,  of  American 
The  spirit  of  these  institutions,  and  to  a  large  extent  the 
form  as  well,  they  brought  with  them.  The  environment 
of  the  new  land  differed  much,  however,  from  that  of  the 
old,  hence  there  was  need  of  adapting  the  ancient  township 
and  county  institutions  to  the  demands  of  frontier  com- 
munities. This  the  colonial  ancestors  of  America  did,  the 
alterations  being  rather  considerable  in  some  parts  of  the 
country  but  much  less  extensive  in  others.  Three  types 
of  local  government  were  soon  evolved,  all  of  them  deri- 
vations from  the  ancient  institutions  of  England.1 

In  the  New  England  colonies  the  town  was  the  unit  of 
local  government  upon  which,  for  reasons  of  practical  ex- 
pediency, the  main  emphasis  was  laid,  although  counties 

1  For  a  full  survey  of  this  development  see  John  A.  Fairlie,  Local 
Government  in  Cities,  Towns  and  Villages  (New  York,  1906),  ohs.  i,  ii; 
and  G.  E.  Howard,  Local  Constitutional  History  of  the  United  States 
(N.  Y.,  1889). 

535 


536      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Types  of 
local  gov- 
ernment 
in  the 
American 
colonies : 

1.   New 
England. 


Why  the 
town  type 
was 
evolved. 


The  town 
meeting. 


The  officers 
of  town 
govern- 
ment. 


were  also  organized  on  the  English  model.  Some  historians 
have  endeavored  to  see  in  this  accenting  of  town  organiza- 
tion a  renaissance  of  the  old  Teutonic  landesgemeinde  or 
community  of  freemen.  But  there  was  no  conscious  imi- 
tation of  any  mediaeval  practice.  The  settlers  who  came 
to  the  New  England  colonies  gravitated  into  compact  com- 
munities. They  did  this  because  their  farms  were  relatively 
small,  because  the  dangers  from  hostile  Indians  could  be 
better  avoided  in  that  way,  and  because  the  untamed  wil- 
derness was  at  best  a  lonesome  place  in  the  long  winters 
when  there  was  very  little  work  to  do.  Having  congregated 
their  dwellings  together  it  was  quite  natural  that  the  demo- 
cratic spirit  of  Puritanism,  which  permeated  the  political 
as  well  as  the  religious  belief  of  these  colonists,  should  assert 
itself  and  find  ready  expression  in  a  form  of  town  government 
in  which  all  freemen  might  share. 

The  government  of  the  New  England  town  was  vested, 
therefore,  in  a  town  meeting,  which  at  the  outset  consisted 
of  all  the  adult  male  inhabitants.  This  meeting,  which 
was  held  several  times  a  year,  elected  its  own  moderator  or 
presiding  officer,  levied  the  local  taxes,  provided  for  all 
expenditures,  passed  whatever  by-laws  were  needed,  made 
provision  for  roads  and  bridges,  for  schools,  and  for  the  care 
of  the  poor.  The  town  was  the  local  unit  for  the  organiza- 
tion of  the  colonial  militia  and  also  for  election  of  repre- 
sentatives in  the  colonial  assembly.  Its  organization  and 
functions  were  thus  not  unlike  those  of  the  open  vestry  or 
parish  meeting  in  England.1 

In  the  earliest  colonial  days  the  town  meeting  was  called 
at  frequent  intervals,  but  as  the  communities  grew  in  size 
this  was  found  to  be  inconvenient.  Consequently  the  towns- 
men adopted  the  plan  of  appointing,  at  the  annual  town 
meeting,  a  board  of  selectmen  or  executive  committee  whose 
function  it  was  to  carry  out  the  decisions  of  the  town  meet- 
ing in  the  intervals  between  sessions.  The  board  consisted 
of  never  less  than  three  nor  more  than  thirteen  townsmen, 
elected  for  a  single  year,  and  unpaid.  Their  duties,  at  first 
very  loosely  defined,  became  in  time  more  clearly  marked 
out.  They  took  immediate  charge  of  such  administrative 
1  See  also  below,  pp.  561-564. 


THE  HISTORY  OF  LOCAL  GOVERNMENT  537 

work  as  there  was  to  do.  The  town  had  some  other  officials, 
also,  such  as  assessors,  surveyors  of  roads,  and  constables, 
all  elected  in  town  meeting.  This  town  type  of  local  gov- 
ernment predominated  in  all  the  New  England'  colonies. 

In  the  southern  colonies  a  different  type  prevailed.  There  2.  The 
the  county  became  the  chief  unit  of  local  administration. 
Its  officers,  including  a  county  lieutenant,  a  sheriff,  and  sev- 
eral justices  of  the  peace,  were  appointed  by  the  governor ; 
there  was  no  general  meeting  or  all  the  citizens  to  vote  the 
taxes  or  to  determine  matters  of  local  policy.  The  voters 
of  the  county,  that  is  to  say,  those  citizens  who  held  property  The 
or  were  otherwise  qualified  to  vote,  elected  the  county's  county 
representatives  in  the  colonial  assembly.  It  was  just  as  log- 
ical, however,  that  the  county  type  of  local  government 
should  have  developed  in  the  South  as  that  the  town  type 
should  have  predominated  in  New  England.  In  the  south- 
ern colonies  there  were  large  plantations  with  relatively 
few  settlers  occupying  a  considerable  area.  The  homes  of 
the  planters  were  scattered  at  distances  one  from  another, 
and  there  was  no  such  social  or  religious  homogeneity  as 
that  which  characterized  the  population  of  New  England. 
Almost  everywhere  throughout  the  colonial  South  the  man- 
agement of  local  affairs  drifted  into  the  hands  of  the  plan- 
tation-owners, who  formed  a  close  corporation.  The  chief 
organ  of  county  government  was  the  county  court,  which, 
as  in  England,  combined  administrative  with  judicial  func- 
tions. For  example,  it  had  charge  of  the  building  and  repair 
of  roads  and  bridges.  This  county  court  was  made  up  of 
justices  of  the  peace,  and  its  sessions  were  held  four  times  a 
year. 

There  were  parishes  also  in  the  southern  colonies,  notably 
in  Virginia,  each  parish  being  a  civil  as  well  as  a  religious, 
district.  The  management  of  its  affairs  was  in  the  hands  of 
a  vestry,  a  body  of  twelve  parishioners.  These  vestrymen 
were  at  first  chosen  by  the  people  of  the  parish,  but  in  time 
the  vestry  became  a  self-perpetuating  body,  filling  all  va- 
cancies in  its  own  membership  as  they  occurred.  The  county 
soon  dwarfed  the  parish  to  a  very  subordinate  position. 

In  the  middle  colonies,  particularly  in  New  York  and  Penn- 
sylvania,  there  was   a  mixed  type  of  local    government; 


538      THE  GOVERNMENT  OF  THE  UNITED  STATES 


3.   The 

middle 
colonies. 

The  mixed 
type. 


The 

colonial 

borough. 


in  other  words,  a  combination  of  county  and  town  adminis- 
tration. After  the  evacuation  of  the  New  Netherland  by  the 
Dutch  the  English  divided  the  colony  into  counties  each 
with  a  county  court.  The  county  did  not,  however,  become 
as  strong  as  in  the  southern  colonies,  and  the  administrative 
functions  of  the  county  courts  were  in  time  taken  over,  for 
the  most  part,  by  the  elective  county  supervisors.  Towns 
and  townships  were  also  established  in  the  middle  colonies, 
especially  in  New  York,  and  they  became  important  areas 
of  local  government  although  by  no  means  so  dominating 
as  in  New  England. 

Another  unit  of  local  government  in  nearly  all  the  col- 
onies except  those  of  New  England  was  the  borough.  In 
England  a  borough  was  a  community  which  had  received 
a  charter  from  the  crown ;  in  America  it  was  a  community 
chartered  by  the  governor  as  the  crown's  representative. 
Various  colonial  towns  received  such  charters  and  thereby 
became  boroughs,  among  them  New  York  and  Albany  in 
1686,  Philadelphia  in  1691,  Annapolis  in  1696,  Richmond 
in  1742,  and  Trenton,  the  last,  in  1742.  There  were  about 
twenty  boroughs  in  all.  None  of  them  were  in  the  New 
England  colonies,  for  there  the  system  of  town  government 
was  regarded  as  sufficient  and  satisfactory  even  for  the 
largest  colonial  communities  such  as  Boston,  Salem,  and 
New  Haven.1  When  a  town  became  a  borough,  it  received 
a  new  scheme  of  administration,,  modelled  upon  the  prevail- 
ing system  of  borough  government  in  England.  Thence- 
forth it  had  its  mayor,  aldermen,  and  common  councillors. 
The  mayor  was  in  some  cases  appointed  by  the  governor ; 
more  often  he  was  elected  by  the  aldermen  and  councillors 
together.  The  voters  or  freemen  of  the  borough  chose 
.the  councillors,  and  the  latter,  in  turn,  named  the  aldermen ; 
but  all  sat  in  the  same  borough  council,  —  mayor,  aldermen, 
and  councillors  together.  This  borough  system,  as  will  be 
shown  later,  was  the  genesis  of  the  American  plan  of  city 
government. 

The  system  of  local  government  before  the  Revolution, 
despite  its  considerable  variations  in  different  parts  of  the 

1  Two  borough  charters  were  granted  in  New  England,  but  no  borough 
governments  were  actually  established. 


THE  HISTORY  OF  LOCAL  GOVERNMENT  539 

land,  was  regarded  by  the  colonists  as  satisfactory.     It  was  Satis- 
especially  so  in  New  England,  and  in  the  other  areas  no  ^tunf 
serious  outcry  was  ever  raised  against  it.     Oppression    in  of  local 
local  government  was  not  one  of  the  causes  of  the  Revolution.  J^J^hi 
The  colonists  everywhere  had  as  much   control  over  their  the  colonial 
local  affairs  as  had  Englishmen  at  home ;    in  New  England  era* 
they  had  a  great  deal  more.     A  large  part  of  the  local  organ- 
ization which  existed  in  colonial  days  was  carried  over  into 
the  new  order  after  the  Revolution,  and  some  portion  of 
it  has  remained  to  this  day.     The  New  England  system  of 
town  government,  for  example,  has  come  into  the  twentieth 
century  without  substantial  change. 

The  Revolution  did  not,  therefore,  bring  about  any  gen-  General 
eral  reconstruction  of  local  government,  nor  did  it  set  in  theRev- 
motion  any  appreciable  progress  toward  uniformity.     New  oiution 
England  retained  its  town  organization  intact ;  Virginia  re- 
tained  the  county  system  without  any  change  whatsoever,  tions. 
In  the  other  states  there  were  some  alterations,  chiefly  in 
the  way  of  making  the  county  officials  elective,  either  by 
the  people  or  by  the  state  legislature.     Direct  election  by 
the  people  did  not  at  once  commend  itself  on  any  general 
scale,  and  where  that  plan  was  adopted  the  suffrage  remained 
for  the  most  part  in  the  hands  of  freeholders  or  taxpayers. 
Such  changes  as  the  Revolution  effected  in  local  govern- 
ment, however,  were  in  the  direction  of  increased    local 
control. 

In  the  closing  years  of  the  eighteenth  century  and  during  Deveiop- 
the  first  decade  of  the  nineteenth,  the  great  western  regions  ™®2f hf 
began  to  be  settled  and  organized.     To  these  territories  the  stitutions 
local  institutions  of  the  older  states  were  transplanted.     In  ^,f 'erio 
moving  westward  they  followed   roughly  the  parallels   of  from  the 
latitude.1     In  other  words,  the  new  states  of  Kentucky  and 
Tennessee  took  their  local   institutions  from  Virginia  and 
the  other  states  of  the  older  South,  while  Indiana  and  Ohio 
adopted  systems  of  local  government  similar  in  main  outlines 
to  that  of  Pennsylvania.     Mississippi  and  Alabama   were 
influenced  by  Georgia.     In  the   Northwest   Territory  the 
influence  of  New  England  was  discernible  in  the  establish- 
ment of  town  meetings,  although  these  meetings  developed 
1  J.  A.  Fairlie,  Ibid.,  p.  35. 


540      THE  GOVERNMENT  OF  THE  UNITED  STATES 

no  important  function  except  that  of  electing  the  local  offi- 
cials. 

influence          But  although  the  new  states  derived  their  types  of  local 
frontier        government  from  the  older  communities  they  were  inclined 
states.          to  develop  them  more  rapidly  along  democratic  lines.     The 
principle  of  popular  election  in  the  case  of  county  and  town 
officials  received  greater  emphasis.     In  consequence  of  this 
the  original  diversity  of  local  government  was  not  only  main- 
tained but  intensified.     By  1820  there  were  not  only  three 
general  types  of  local  governrnent  in  the  various  states,  but 
numerous  modifications  of  these  three  types  representing 
all  degrees  of  progress  towards  complete  local  autonomy. 
Develop-          It  was  about  this  time,  1820,  that  the  movement  towards 
between        ^e  direct  popular  election  of  all  local  officials  began  to  gain 
1820  and       an  irresistible  momentum.    During  the  next  twenty  years  the 
the  Civil       elective  plan  made  great  headway,  not  only  in  the  frontier 
states  but  in  New  England,  New  York,  and  Pennsylvania. 
In  Virginia,  however,  and  in  a  few  other  states  which  fol- 
lowed the  lead  of  the  Old  Dominion,  the  appointment  of 
county  officers  continued  to  be  the  rule.     The  policy  of 
appointment  as   applied   to  officials   of   local   government 
proved  to  be  a  lost  cause,  for  the  practice  of  popular  election 
commended  itself  to  one  after  another  of  the  new  states  as 
territories  west  of  the  Mississippi  were  organized  into  com- 
monwealths.    The    democratic    waVe    which    marked    the 
Jacksonian  era,  moreover,  swept  the  elective  principle  into 
acceptance  almost  everywhere,  while  the  widening  of  the 
suffrage  placed  the  control  of  local  elections  in  the  hands 
of  the  whole  people  and  not  of  the  taxpayers  alone. 
Fairiie's  Thus  by  the  time  the  Civil  War  began,  the  main  features 

o?Theary       °^  Present-day  local  government  throughout   the   United 
situation       States    had    become    well    established.1     "Throughout  the 
in  i860.        country,"  as  Professor  Fairlie  has  shown,  "the  states  were 
divided  into  counties,  each  with  a  considerable  number  of 
elective  offices,  but  with  important  differences  in  the  organ- 
ization of  the  fiscal  authority.     Everywhere,  too,  the  county 
was  subdivided  into  smaller  districts ;  but  these  varied  in 
importance  from  the  New  England  town,  through  the  town- 
ship of  the  Middle  West,  to  the  election  and  judicial  pre- 
1  J.  A.  Fairlie,  Ibid.,  pp.  47-48. 


THE  HISTORY   OF  LOCAL  GOVERNMENT  541 

cincts  in  the  South.  The  basis  of  suffrage  for  local  elections 
was  the  same  as  for  state  elections,  and  had  been  steadily 
expanding  during  the  half-century  before  I860,  until  the 
general  system  was  one  where  every  free  white  male  citizen 
could  vote." 

During  the  fifty  years  or  more  which  have  elapsed  since  Changes 
the  conclusion  of  the  Civil  War  there  have  been   many  "^rn 
changes  in  the  local  systems  of  the  various  states,  but  few  ment  since 
of  them  are  of  vital  importance.  -  To  some  extent  the  south- 
ern  states  have  divided  their  counties  into  townships   or 
other  minor  districts,,  but  nowhere  in  these  states  has  a 
vigorous  town  or  township  organization  been  developed  as 
in  the  North.     In  several  of  the  southern  states,  moreover,  i.  in 
there  has  been  a  tendency  to  expand  the  sphere  of  state  the 
control  over  local  institutions.     This  has  been  aimed,  in  states, 
part  at  least,  to  secure  the  more  efficient  maintenance  of 
law  and  order,  the  better  administration  of  justice,  and 
greater  provision  for  education  in   those   counties  where 
there  is  a  large  negro  population.     Officials  of  local  govern- 
ment are  now  for  the  most  part  directly  elected  in  the  south- 
ern states;    but  the  suffrage  in  local  as  in  state  elections 
is  confined  almost  entirely  to  white  male  citizens.     The 
Fourteenth   and   Fifteenth   amendments  .  to   the    national 
constitution  guaranteed  that  there  should  be  no  political  dis- 
crimination in  any  of  the  states  on  account  of  "race,  color, 
or  previous  condition  of   servitude/'  but  this   guarantee 
has  proved  as  ineffective  at  local  as  at  state  or  national 
elections. 

In  the  northern  and  western  states  there  has  been  no  2.  in  the 
great  or  steady  extension  of  state  control  over  the  areas  of  h  and 
local  government  except  in  the  case  of  the  cities.  The 
county,  particularly  in  the  states  west  of  the  Mississippi, 
has  been  developing  to  a  position  of  greater  importance 
during  the  last  half  century,  while  the  townships,  owing 
to  the  growing  practice  of  incorporating  villages,  towns,  and 
special  districts  within  their  borders,  as  will  be  explained 
presently,  have  hardly  held  their  own.  In  areas  which  are 
sparsely  settled  it  is  natural  that  the  county  should  be  first 
established  as  the  main  unit  of  local  government,  but  as 
population  increases  in  density  and  a  subdivision  of  local 


542      THE  GOVERNMENT  OF  THE  UNITED  STATES 

functions  becomes  essential  the  logical  step  is  to  develop 
smaller  divisions  whether  in  the  form  of  townships,  towns, 
or  incorporated  cities. 

The  con-  The  terminology  of  local  government  in  the  United  States 
fusion  of  is  veiy  confusing.  The  New  England  town,  for  example, 
govern-  has  its  geographical  analogy  in  the  township  of  the  Missis- 
sippi valley  states.  It  is  not  necessarily  an  urban  or  thickly 
settled  area.  It  may  have  thirty  or  forty  thousand  inhab- 
itants crowded  closely  together,  or  it  may  have  only  a  few 
hundred  scattered  over  many  square  miles.  The  town, 
in  other  parts  of  the  country,  is  usually  an  incorporated 
urban  community,  covering  only  a  part  of  a  township  and 
immune  from  township  government.  So  with  cities.  In 
some  states  this  designation  is  reserved  for  the  largest  urban 
communities,  with  populations  of  ten  thousand  or  even  more. 
In  others  any  area  of  local  government,  even  though  its 
population  be  only  a  few  hundred,  may  be  incorporated 
as  a  city.  The  distinction  between  city,  town,  and  village, 
taking  the  United  States  as  a  whole,  is  not  one  of  size  or 
population  or  importance,  but  merely  one  of  legal  status. 
The  The  practice  of  incorporating  not  only  villages,  boroughs, 

growth  towns  and  cities,  but  school  districts,  police  districts,  fire 
porated  districts  and  sanitary  districts  as  well,  has  been  another 
areas-  feature  of  development  during  the  last  decades.  When 

any  portion  of  a  township,  county  or  other  rural  area  be- 
comes more  thickly  settled  than  the  rest,  its  inhabitants 
make  request  for  some  special  public  services  in  the  way 
of  fire  protection,  police,  schools,  water  supply,  or  sanita- 
tion. Accordingly,  the  small  area  in  which  they  live  is 
often  incorporated  by  law  into  a  district  for  one  or  other 
of  these  special  purposes.  The  district  becomes  a  corpora- 
tion with  power  to  borrow  money  and  to  raise  taxes  in  con- 
nection with  the  special  purpose  for  which  it  is  incorporated  ; 
its  inhabitants  being  usually  given  the  right  to  elect  trus- 
tees or  other  officers  of  local  administration  with  carefully 
limited  jurisdiction.  As  population  becomes  more  con- 
gested in  all  the  states,  therefore,  the  township  becomes 
less  important  as  an  area  of  local  government  because  one 
portion  of  it  after  another  is  virtually  given  independence 
in  whole  or  in  part  by  a  charter  of  incorporation. 


THE  HISTORY  OF  LOCAL  GOVERNMENT  543 

Decentralization  in  the  framework  of  local  government  The  forms 
continues  to  be  the  rule  throughout  the  country,  although  ^OC^J, 
it  is  more  pronounced  in  some  states  than  in  others.     Save  eminent 
in  a  very  few  cases,  and  these  are  in  the  southern  states,  no 
attempt  has  been  made  to  place  the  appointment  of  county, 
town,  or  township  officers  in  the  hands  of  the  state  author- 
ities, thus  removing  them  from  the  direct  control  of  the 
people  concerned.     The  forms  of  local  autonomy  are  almost 
everywhere  preserved.     This  is  a  matter,  moreover,  upon 
which    the    communities    have    strong    sentiments.     State 
interference  with  the  selection  of  local  officers  is  everywhere 
vigorously  resented. 

But  state  supervision  over  the  work  of  these  officials  does  But  state 
not  provoke  so  much  local  antagonism,  and  it  has  been  de-  j5011*1"01  of 
veloping  steadily  in  recent  years  although  not  at  the  same  activities 
rate  of  progress  in  all  the  states.     It  began  with  school  I1*18 
administration,  for  two  reasons.     First,  it  became  generally 
recognized  many  years  ago  that  the  system  of  free  public  The  start- 
education,  being  so  vital  to  the  general  welfare  of  the  whole  mg  pomt : 
state,  could  not  be  safely  left  to  the  voluntary  and  capri-  Education- 
cious  action  of  towns,  villages,  or  townships.     Compulsory 
education  laws  were  passed  by  the  states  and  state  author- 
ities were  created  to  see  that  these  laws  were  carried  out. 
Second,  the  local  communities  receive  from  the  state,  in 
most  cases,  large  annual  subsidies  or  grants  for  the  support 
of  their  schools.     The  policy  of  state  financial  aid  carries 
with  it,  of  course,  the  right  of  the  state  to  see  that  these 
contributions  are  not  misapplied  or  wasted,  a  right  which 
is  capable  of  expansion  to  a  point  where  it  virtually  permits 
the  state  to  control  the  general  policy  of  the  local  school 
authorities.     At  any  rate,  the  centralizing  movement  ob- 
tained its  first  foothold  in  the  realm  of  local  education. 

From  that  point  of  vantage  it  has  spread  to  other  fields  of  state  super- 
local  activity,  public  health,  poor  relief,  the  assessment  of  ^°rnin 
property  for  taxation,  and  the  enforcement  of  the  law.     In  fields, 
all  these  matters  it  is  not  difficult  to  demonstrate  that  a 
policy  of    strict  non-intervention    may  be  detrimental  to 
the  general  interest.     When  each  county,  town,  or  township 
is  permitted  to  make  and  enforce,  or  to  leave  unenforced, 
whatever  rules  for  the  preservation  of  the  public  health  its 


544      THE  GOVERNMENT  OF  THE  UNITED  STATES 


More  local 
self-gov- 
ernment in 
the  United 
States 
than  in 
European 
countries. 


The  merits 
and  defects 
of  local 
autonomy. 


own  officials  may  decide  upon,  it  is  altogether  likely  that 
one  community  will  be  made  to  suffer  for  the  negligence 
or  ignorance  of  its  neighbors.  It  should  not  be  within  the 
power  of  any  county,  town,  or  township  to  decide  whether 
or  not  it  will  quarantine  cases  of  infectious  disease.  The 
public  health  can  be  effectively  protected  only  when  all 
communities  are  uniformly  vigilant,  and  to  insure  this  situ- 
ation there  must  be  some  general  supervisory  authority. 
So  with  various  other  matters  which  at  first  glance  may  seem 
to  be  functions  of  strictly  local  administration  but  appear 
upon  careful  analysis  to  be  things  which  intimately  concern 
the  people  of  the  state  as  a  whole.  The  guiding  hand  of 
state  authority  is  being  therefore  applied  to  local  adminis- 
tration in  many  of  its  branches,  and  the  end  of  this  develop- 
ment is  not  yet  in  sight.  It  is  in  the  cities,  however,  rather 
than  in  the  rural  areas,  that  the  progress  of  centralized 
supervision  has  been  most  marked,  and  it  is  there,  as  will 
be  seen  later,  that  the  protest  against  this  movement,  the 
cry  for  local  home  rule,  has  become  most  vociferous. 

Yet  with  all  this  widening  of  central  supervision  over 
local  government,  the  counties,  towns,  and  townships  of  the 
United  States  have  on  the  whole  a  larger  measure  of  auton- 
omy than  have  their  prototypes  in  European  countries. 
Centralization  in  England  has  gone  much  further  during 
the  last  half  century,  although  even  there  the  officials  of 
local  government  retain  far  greater  freedom  from  national 
supervision  than  has  been  left  to  the  local  authorities  in  any 
country  of  continental  Europe. 

Home  rule  in  counties  or  townships,  as  in  cities,  has  its 
merits  and  defects,  both  of  which  are  too  obvious  to  need 
much  elucidation.  It  fosters  local  initiative,  encourages 
the  trying  of  experiments  which  may  prove  worthy  of  gen- 
eral adoption,  allows  each  local  community  to  adapt  its  own 
administration  to  its  own  needs,  and  tends  to  develop  a 
wholesome  spirit  of  local  rivalry  in  good  works.  Local  in- 
dependence begets  local  responsibility.  On  the  other  hand, 
local  home  rule  too  often  becomes  another  name  for  local 
misrule,  and  the  sins  of  one  remiss  community  are  visited 
upon  its  neighbors.  The  right  of  the  individual  community 
to  do  as  it  pleases,  spend  its  own  money  as  it  may  see  fit, 


THE  HISTORY  OF  LOCAL  GOVERNMENT  545 

and  be  a  law  unto  itself  is  surely  no  greater  than  that  of 
the  individual  citizen.  The  limits  of  liberty  in  each  case  are 
set  by  the  rights  of  others.  That  is  the  fundamental  con- 
sideration to  be  borne  in  mind  when  dealing  with  the 
problem  of  local  self-government. 


2N 


CHAPTER  XXXVIII 


The 

county 
as  a 

geograph- 
ical area. 


The 

creation 
of  counties. 


COUNTY  GOVERNMENT 

EVERY  state  of  the  Union,  with  the  single  exception  of 
Louisiana,  is  divided  into  counties.1  In  these  forty-seven 
states  there  are  nearly  three  thousand  of  them.  They  are 
of  all  sizes  and  density.  The  largest  is  Ouster  County  in 
Montana  which  takes  in  more  than  twenty  thousand  square 
miles ;  the  most  populous  are  New  York  County  in  which 
the  downtown  portion  of  New  York  City  is  located,  and 
Cook  County,  Illinois,  which  includes  Chicago.2  For  the 
most  part  the  county  is  a  firmly  established  geographical 
area,  and  its  boundaries  are  rarely  changed  in  the  older 
states.  In  the  newer  states  the  counties  were  mapped  out  in 
the  first  instance  on  a  large  scale,  hence  they  are  frequently 
divided  as  population  increases.  In  the  long  run,  however, 
the  tendency  is  to  make  the  county  a  fixed  and  permanent 
division  of  the  state. 

As  a  general  rule  the  creation  of  new  counties  is  within  the 
powers  of  the  state  legislature,  but  in  many  of  the  states 
there  are  numerous  constitutional  provisions  which  limit 
the  legislature's  authority  by  providing  that  new  counties 

1  In  Louisiana  the  parish  is  the  equivalent  of  the  county  in  the  other 
states. 

2  The  smallest  county  in  point  of  area  is  Bristol  County,  R.  I.,  which 
contains  about  twenty-five  square  miles;    the  smallest  in  population  is 
Brown  County,  Texas,  which  had  four  inhabitants  in  1900.     "Comparing 
the  American  county  in  area  and  population  with  the  districts  in  European 
countries  most  nearly  similar  it  will  be  seen  that  the  former  is  a  less 
important  administrative  division.     English  counties  average  nearly  a 
thousand  square  miles  in  area,  and  (omitting  the  large  cities  which  for 
administrative  purposes  are  considered  as  separate  counties),  300,000 
population.      French  departments  average  over  2000  square  miles  in 
area  and  400,000  population.     Prussian  provinces  average  over  100,000 
miles  in  area  and  nearly  2,000,000  population,  and  even  the  circles  (Kreise), 
although  smaller  in  area  (averaging  about    300  square  miles),  have  an 
average  population  of  over  50,000."     John  A.  Fairlie,  Local  Government 
in  Counties,  Towns,  and  Villages  (N.  Y.,  1906),  p.  62. 

546 


COUNTY  GOVERNMENT  547 

may  be  established  or  the  boundaries  of  existing  counties 
changed   only  with  the  consent   of  the  voters  concerned. 
The  state  legislature  likewise  has  power  to  determine  the  Legis- 
form  of  county  government,  the  location  of  the  county  l^^0i  of 
seat,  and  the  powers  of  the  various  county  officials.     This  counties 
it  has  usually  done  not  by  enacting  a  general  county  code  " 
but  by  innumerable  special  laws  which  have  created  much  rule." 
confusion  and  conflict  of  authority.     It  is  for  this  reason 
that  the  constitutions  of  many  ^states  have  set  up  numer- 
ous limitations  upon  the  legislature's   discretion  in  deal- 
ing  with    county    affairs.     In  some  it  is  stipulated  that 
the  government  of  counties  must  be  provided  for  by  a 
general  statute  and  not  by  special  laws.     In  a  few,  in  Cali- 
fornia, for  example,  the  inhabitants  of  counties  are  permitted 
to  determine  their  own  form  of  county  government  through 
the  framing  of  a  county  charter  by  a  board  of  freeholders 
and  the  adoption  of  the  charter  by  vote  of  the  people. 
Ultimate  approval  of  the  county  charter  by  the  state  legis- 
lature is  required,  but  this  is  not  likely  to  be  denied.     Los 
Angeles  County  in  1912  adopted  a  new  charter  in  this  way, 
greatly  simplifying  and  improving  its  frame  of  government. 

Counties  are  commonly  spoken  of   as  public  quasi-cor-  Legal 
porations,  which  implies  that  they  are  corporate  bodies  in  **a*™ 
a  sense  but  do  not  possess  the  full  rights  and  powers    of  county, 
municipal  corporations  such  as  cities  or  incorporated  towns. 
They  are  the  agents  of  the  state  in  the  performance  of  its 
political,  administrative,  and  judicial  functions ;  they  may 
sue  and  be  sued,  may  make  contracts,  raise  taxes,  borrow 
money,  and  own  property,   so  that  they  are  public  cor- 
porations to  all  general  intents  and  purposes. 

A  county,  however,  has  no  inherent  right  of  self-govern- 
ment. Save  in  so  far  as  it  is  protected  by  the  provisions 
of  the  state  constitution  it  is  the  creature  of  the  state  leg- 
islature ;  hence  its  authority  and  functions  can  be  enlarged, 
determined,  diminished,  or  even  abrogated  at  the  will  of 
that  body.1 

Counties  are  established  to  serve  as  political,  adminis- 

1  For  a  discussion  of  the  legal  aspects  of  county  government,  see  Eugene 
McQuillin,  A  Treatise  on  the  Law  of  Municipal  Corporations  (6  vols., 
Chicago,  1913),  i,  pp.  428-488. 


548      THE  GOVERNMENT  OF  THE  UNITED  STATES 

General  trative,  and  judicial  districts.     They  are  political  divisions 

oH;he0ns  because  in  most  of  the  states  the  county  is  the  unit  upon 

county  which  representation  in  the  state  legislatures  is  based,  each 

anTof  county  electing  one  or  more  senators  and  also  its  quota  of 

local  assemblymen    or   representatives.     Not   infrequently,    too, 

men™"  ^  serves  as  a  unit  for  the  determination  of  certain  questions 

political,  of  public  policy,  as  for  example,  in  the  matter  of  local 


option  on  the  question  of  prohibiting  the  sale  of  intoxicants, 
and  each  county  being  allowed  in  many  states  to  determine  this 

matter  for  itself.  As  an  administrative  district,  however, 
it  is  more  important.  Practically  everywhere  it  is  an  area 
of  financial  administration.  The  taxes  are  in  many  states 
assessed,  levied,  and  collected  by  county  officers,*a  part  of 
the  proceeds  being  turned  over  to  the  state,  a  part  in  some 
cases  to  the  towns  or  townships  within  the  county,  and  the 
remainder  retained  for  county  purposes.  Nearly  every- 
where, again,  the  county  is  given  considerable  authority 
with  reference  to  the  construction  and  repair  of  main  high- 
ways and  bridges.  Occasionally  it  has  the  duty  of  provid- 
ing other  public  works  as  well.  Poor  relief,  including  the 
providing  of  poorhouses,  is  in  most  states  a  county  func- 
tion. Particularly  in  the  southern  states  the  system  of 
elementary  school  administration  is  organized  on  a  county 
basis.  To  some  extent  it  is  a  primary  unit  for  the  enforce- 
ment of  law  and  order  through  its  sheriff  and  its  deputy 
sheriffs,  especially  in  the  sparsely  settled  regions  ;  and 
finally  it  is  in  some  parts  of  the  country  the  recognized  unit 
for  the  organization  of  the  state  militia.  The  administrative 
functions  of  the  county  are  therefore  varied  and  extensive, 
much  more  so,  however,  in  some  states  than  in  others.  But 
the  chief  function  of  the  county  is  to  serve,  not  as  a  political 
or  administrative  area  of  government,  but  as  a  judicial 
district.  It  is  in  practically  every  state  a  district  for  the 
administration  of  civil  and  criminal  justice,  usually  also 
for  the  registry  of  deeds  and  the  probating  of  wills,  and 
almost  invariably  for  the  maintenance  of  courthouses  and 
institutions  of  correction.  In  the  judicial  systems  of  the 
several  states  the  county  court  and  its  various  officers  form 
an  important  part.1 

1  See  H.  S.  Gilbertson,  County  Government  (N.  Y.,  1917). 


COUNTY  GOVERNMENT  549 

The  centre  of  county  government  is  the  county  seat  or  The 
capital.     The  selection  is  made  by  the  legislature  when  the  ™™ 
county  is  first  established,  and  the  legislature  may  remove 
it  to  some  other  city  or  town  at  any  later  time,  but  in  many 
of  the  states  the  constitution  forbids  this  unless  the  voters 
of  the  county  approve  the  change.     The  county  seat  is  the 
location  of  the  county  courthouse,  the  offices  of  the  county 
board,  and  often  the.  other  county  offices  as  well.1 

The  chief  administrative  organ  of  the  county  in  all  the  The 
states  but  two  is  a  county  board.2  Members  of  this  board 
are  usually  known  as  commissioners  or  supervisors.  They 
differ  greatly  in  number  and  in  method  of  selection  from 
state  to  state.  In  New  England  the  boards  are  small, 
usually  consisting  of  three  members.  They  are  elected  itsorgan- 
by  the  voters  of  the  county  at  large  except  in  Connecticut,  ization- 
where  they  are  appointed  by  the  state  legislature.  In  other 
eastern  states,  such  as  New  York  and  New  Jersey,  the  board 
is  a  much  larger  body,  including  from  fifteen  to  twenty-five 
members  or  even  more.  The  members,  usually  known  as 
supervisors,  are  not  chosen  by  the  voters  of  the  county  at 
large,  but  are  sent  as  representatives  by  the  townships  and 
cities  included  in  the  county.  In  this  case  the  representation 
is  not  according  to  population,  for  each  community,  however 
small,  has  at  least  one  representative.  This  method  of 
constituting  the  county  board  is  also  followed  in  some  states 
of  the  Middle  West,  including  Michigan  and  Wisconsin. 
Still  another  plan  is  found  in  Pennsylvania  and  in  various 
states  throughout  the  West,  including  Ohio,  Indiana, 
Minnesota,  Nebraska,  Kansas,  and  the  Dakotas.  Here  the 
board  is  small,  with  from  three  to  seven  members ;  but  the 
choice  of  members  is  not  made  by  the  voters  at  large  as  in 
New  England  or  by  municipalities  as  in  New  York.  The 
counties  in  these  last-named  western  states  are  divided  into 
districts  and  each  district  elects  one  or  more  supervisors. 
In  the  southern  states  there  is  a  great  variety  of  practice. 
The  board  is  usually  a  small  body,  but  its  members  are 

1  Occasionally  a  county  has  two  county  seats,  each  with  a  courthouse 
and  other  county  offices. 

2  The  exceptions  are  Louisiana,  which  has  parish  boards  but  no  counties, 
and  Rhode  Island,  which  has  counties  but  no  boards. 


550      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Diversity 
in  organi- 
zation of 
the  boards. 


The 

functions 
of  county 
boards : 


1.   Finan- 
cial. 


Taxation 
and  appro- 
priations. 


sometimes  elected  at  large  and  sometimes  by  districts. 
Finally  in  the  states  of  the  Pacific  slope  and  Rocky  Mountain 
areas  the  preference  has  been  for  a  small  board,  usually  of 
three  members,  but  there  is  no  uniformity  in  the  method  of 
selecting  these  three  commissioners. 

It  is  commonly  said  that  county  boards  may  be  divided 
into  two  general  classes  :  first,  the  small  board  of  three  or  more 
members  elected  at  large  for  the  whole  county  or  from  large 
districts ;  and  second,  the  representative  board  composed 
ordinarily  of  one  member  elected  from  each  township 
within  the  county.  It  is  added,  usually,  that  the  first 
type  prevails  in  New  England,  in  the  South,  in  the  Middle 
West  and  in  the  Pacific  states,  while  the  latter  is  to  be  found 
in  New  York,  New  Jersey,  Michigan,  and  a  few  other  states.1 
This  generalization,  however,  is  true  only  in  the  rough. 
There  are  many  compromises  between  these  two  types, 
and  some  states  do  not  conform  in  any  essential  respect  to 
either.  There  is  almost  as  much  variety  in  county  govern- 
ment as  in  city  government  throughout  the  United  States. 

The  functions  of  the  county  board  are  established  by  law. 
Some  states  have  general  laws  on  the  subject,  but  in  most 
of  them  the  duties  of  county  commissioners  or  supervisors 
are  set  forth  in  a  long  succession  of  separate  and  unrelated 
special  acts  of  the  legislature  which  sometimes  apply  to  one 
county  and  not  to  others.  Taking  the  boards  as  a  whole, 
however,  their  functions  may  be  grouped  under  six  general 
heads  :  financial,  highways  and  bridges,  other  public  works, 
poor  relief,  elections,  and  miscellaneous. 

Most  county  boards  have  the  right  to  levy  county  taxes 
and  to  make  appropriations  for  expenditure.  There  are 
some  exceptions  to  this,  however,  notably  in  Massachusetts, 
where  the  appropriations  are  made  by  the  legislature  (usually 
on  the  recommendation  of  the  county  commissioners),  and 
in  New  Hampshire  and  Connecticut,  where  the  legislature 
retains  the  function  both  of  determining  the  county  tax 
rate  and  of  making  the  appropriations.  In  most  of  the 
other  states,  where  the  county  board  both  makes  the  ap- 
propriations and  spends  them,  there  is  a  fusion  of  two 

1  C.  A.  Beard,  American  Government  and  Politics  (N.  YM  1916),  pp. 
639-640. 


COUNTY  GOVERNMENT  551 

powers  which  are  usually  kept  separate  in  government.  In  The 
the  national  government,  Congress  makes  the  appropriations, 
and  the  executive  has  the  function  of  applying  the  money  to  ing  and 
the  purposes  designated.  In  the  states,  again,  the  legis- 
latures  appropriate  and  the  executive  spends.  So  in  the 
cities  (except  those  under  the  commission  form  of  govern- 
ment), the  council  votes  the  budget,  while  the  mayor  and 
the  heads  of  departments  disburse  the  funds.  But  in 
county  government  throughout  the  larger  part  of  the  country 
the  same  board,  of  three  or  seven  or  fifteen  members  as 
the  case  may  be,  lays  the  taxes,  votes  the  appropriations, 
and  then  proceeds  to  spend  the  money  thus  appropriated. 
This  has  been  criticised  as  an  unsafe  policy  and  in  practice 
it  has  encouraged  extravagance,  although  it  does  not  appear 
to  have  done  so  on  any  large  scale. 

In  addition  to  the  function  of  levying  county  taxes,  other 
making  appropriations,  and  supervising  expenditures  the 
county  board,  as  a  rule,  has  other  financial  duties.  From 
time  to  time,  either  by  general  or  special  law,  the  board  is 
given  authority  to  borrow  money  on  the  county's  credit, 
either  with  or  without  the  necessity  of  first  securing  the 
approval  of  the  voters.  Ordinarily  the  county  board  has 
no  general  power  to  borrow  but  must  obtain  special  legis- 
lative authority  in  each  case.  Borrowing  powers  are 
frequently  obtained  in  this  way  for  the  building  of  roads, 
bridges,  and  county  buildings.  The  county  board,  again, 
sometimes  serves  as  a  tribunal  of  appeal  from  the  assessments 
made  by  local  assessors  or  as  a  board  of  equalization  for 
making  the  proper  adjustments  in  assessments  among 
different  municipalities. 

In  many  states  all  the  important  highways  are  either  2.  Roads 
state   or    county    roads.     The   towns    and    townships    are  f".** 
responsible    for    the    minor    thoroughfares    only.     Nearly 
everywhere  the  county  board  has  authority  to  lay  out,  to 
construct,  and  to  repair  the  various  rural  highways  which 
may  be  designated  as  county  roads ;    but  there  are  great 
differences  among  the  states  in  the  extent  to  which  this 
authority  is  exercised.     In  some,  such  as  Ohio,  Indiana,  and 
California,  county  roads  are  numerous ;    in  Massachusetts 
they  are  very  few.     Main  bridges,  especially  those  which 


552      THE  GOVERNMENT  OF  THE  UNITED  STATES 

connect  two  cities,  or  towns,  or  townships,  are  also  commonly 
built  and  maintained  by  the  county  authorities.  The 
money  for  these  enterprises,  whether  roads  or  bridges,  is 
obtained  partly  by  taxation  and  partly  by  borrowing. 

3.  other  Various  other  public  works  are  provided  by  the  county 
works.          board,  particularly  the  courthouse,  the  county  jail,  the  house 

of  correction,  and  the  registry  of  deeds  (wherever  this  is 
needed).  Such  buildings  are  often  erected  on  an  expensive 
scale,  far  more  so  than  a  county  requires  or  can  well  afford. 
The  management  of  these  buildings,  their  supervision, 
repair,  and  upkeep  is  also  a  function  of  the  board.  In 
states  here  and  there  the  county  officials  have  been  given 
other  public  enterprises  to  carry  through,  such  as  the  con- 
struction of  irrigation  works,  the  abolition  of  grade  railway- 
crossings,  or  the  building  of  levees,  dikes,  and  drains.  In 
general,  when  a  project  concerns  all  the  municipalities  in  the 
county,  or  several  of  them,  the  county  board  is  the  natural 
authority  to  have  charge  of  it. 

4.  Poor  Poor  relief  in  the  great  majority  of  the  states  is  primarily 
relief*           a  county  rather  than  a  local  function.     The  chief  exceptions 

are  the  New  England  states  where  local  responsibility 
in  matters  of  poor  relief  still  remains  extensive.  Over  the 
greater  part  of  the  country  the  county  poorhouse  and 
county  farm  are  well-known  institutions.  Persons  who 
need  public  assistance  are  sent  to  these  institutions  from  all 
the  towns  or  townships  of  the  county.  County  hospitals 
exist  in  a  few  of  the  states.  Institutions  for  the  care  of  the 
insane  are  usually  provided  by  the  state,  not  by  the  county. 
Expenditures  for  the  relief  of  the  poor  have  had  a  relatively 
large  place  in  county  budgets,  but  these  expenditures  have 
not  been,  for  the  most  part,  administered  in  an  enlightened  or 
humane  way.  The  general  policy  has  been  merely  to  build 
a  poorhouse  and  to  put  paupers  into  it,  supporting  them 
there  at  whatever  may  happen  to  be  the  cost.  There  has 
been  relatively  little  attention  to  the  problem  of  helping 
the  poor  to  help  themselves,  thus  reducing  the  burden  of 
poor  relief  by  measures  designed  to  prevent  pauperism.  For 
this  the  county  officials  are  not  mainly  to  blame.  The  states 
have  lent  little  encouragement  to  those  who  do  otherwise 
than  follow  the  methods  of  a  hundred  years  ago.  In  most 


COUNTY  GOVERNMENT  553 

American  counties  the  system  of  poor  relief  remains  exactly 
as  it  was  when  the  county  was  first  established.  There 
has  been  far  less  progress  in  the  methods  of  public  charity 
than  in  the  methods  of  road-building. 

County  boards  have  various  duties  with  reference  to  elec-  5.  Elec- 
tions, although  here  again  the  New  England  states  provide  tlons* 
conspicuous   exceptions  to  the  general  rule.     Throughout 
the  South  and  the  West  the  county  board  has  immediate 
charge   of   election  machinery;  -at   designates   the   polling 
places,   appoints    the   poll    officials,   provides    the    ballots, 
and  canvasses  the  returns.     It  sometimes  also  selects  the 
jury  panels  from  the  voters'  lists.     The  county,  as  has  been 
already  mentioned,  is  the  prevailing  unit  for  the  selection  of 
senators  and  representatives  in  the  state  legislature. 

Finally,  the  county  board  has  miscellaneous  powers.  It  6.  Mis- 
appoints  some  county  officers,  although  in  most  counties  cellaneoug- 
these  officials  (such  as  the  sheriff,  the  county  prosecuting 
attorney,  the  registrar  of  deeds,  the  county  treasurer,  and 
county  clerk)  are  elected  by  the  voters.  In  the  counties 
of  the  southern  states  and  to  some  extent  in  the  central 
and  western  states  as  well,  the  boards  grant  the  liquor 
licenses ;  but  the  spread  of  prohibition  during  the  past 
decade  has  greatly  diminished  the  importance  of  this  au- 
thority. Occasionally  they  issue  charters  of  incorporation 
for  smaller  companies.  Odds  and  ends  of  jurisdiction  go 
to  the  county  boards  here  and  there  ;  for  example,  the  exter- 
mination of  noxious  animals,  the  regulation  of  schools  for 
truants,  the  licensing  of  pedlers,  and  so  on. 

It  will  be  seen  that  the  county  board,  as  the  chief  organ  Some 
of  county  administration,  gathers  to  itself  a  considerable  Bounty 
variety  of  functions.     They  are  in  part  legislative,  since  the  board's 
levying   of  taxes   and   the   making   of   appropriations   are  work* 
legislative  functions.     But  they  are  in  larger  part  adminis- 
trative, as  has  been  indicated.     In  a  few  cases  the  county 
board  has   some   judicial   duties   as  well,  and   sometimes, 
as  in  West  Virginia  and  Missouri,  it  is  officially  listed  as  a 
court.     County  boards  cannot,  therefore,  be  placed  exclu- 
sively in  the  legislative,  executive,  or  judicial  division  of 
government,  and  they  are  among  the  very  few  American 
political  institutions  of  which  that  can  be  said. 


554      THE  GOVERNMENT  OF  THE  UNITED  STATES 

The  While  the  county  board  has,  occasionally,  some  minor 

county         judicial  functions,  it  is  not  that  fact  which  makes  the  county 

judicial         an  important  area  of  judicial  administration.     It  is  rather 

area-  the  existence  of  the  county  court,  an  institution  which  exists 

The  in  almost  all  the  states.     These  county  courts  are  not  always 

courty         constituted  in  the  same  way.     In  about  sixteen  of  the  states 

each  county  has  its  own  judge  and  court.     In  a  few  others 

there  are  separate  judges  and  courts  for  a  few  populous 

counties  only.     Most  of  the  states  do  not  have  a  judge  for 

each  county,  but  group  the  counties  into  judicial  districts 

with  one  judge  for  each  district.     This  judge  then  goes  on  a 

circuit,  holding  sessions  at  the  courthouse  of  each  county  in 

succession.     The  judges  are  in  most  cases  elected  by  the 

voters  of  the  counties  or  districts,  as  the  case  may  be,  but 

they  are  ranked  as  state  officials  and  form  an  integral  part 

of  the  state  judiciary. 

its  juris-  The  jurisdiction  of  the  county  court  usually  extends  to 

diction.  fae  hearing  of  appeals  from  local  courts  presided  over  by 
justices  of  the  peace,  with  original  cognizance  of  criminal 
cases  and  of  civil  controversies  where  the  amount  at  issue 
does  not  exceed  a  certain  sum.  But  the  powers  of  these 
courts  differ  so  greatly  among  the  states  that  no  general 
rule  can  be  laid  down.  The  probating  of  wills  and  the 
administration  of  estates  is  also,  as  a  rule,  a  function  of  the 
county  court,  or  of  a  branch  of  it. 

other  In  addition  to  the  county  board  and  the  judge  of  the 

officials'        county  court  there  are  some  other  officials  of  county  adminis- 
tration.    The  most  important,  at  any  rate  the  oldest  of 
(a)  the         these    offices,   is  that   of  sheriff.      "Every   county  has   a 
sheriff.         sheriff;   and  the  office  may  be  called  the  constituent  office 
of  the   county. " 1     The  name   is   an   abbreviation   of  the 
old  Saxon  shire-reeve,   which  antedates  the  Norman  con- 
quest of  England.     During  the  middle  period  of  English 
history  the  sheriff  was  the  right  arm  of  the  crown  in  the 
counties,  the  keeper  of  the  king's  peace,  and  the  enforcer  of 
the  common  law.     These  functions,  in  a  general  way,  the 
sheriff  of  an  American  county  has  inherited.     He  is  the 
chief  conservator  of  law  and  order  and  the  executive  agent 
of  the  county  court.    The  office  of  sheriff  is  everywhere 
1  Fairlie,  Ibid.,  p.  106. 


COUNTY  GOVERNMENT  555 

elective  save  in  Rhode  Island.  There  the  legislature 
chooses  the  sheriffs.  The  sheriff  is  usually  empowered  to 
appoint  deputies  who  assist  him  in  keeping  the  peace, 
attending  court  sessions,  making  arrests,  serving  court 
papers,  and  so  forth.  Both  sheriffs  and  their  deputies  are 
sometimes  paid  fixed  salaries ;  but  more  often  their  re- 
muneration comes  from  fees.  In  populous  counties  these 
fees  make  the  sheriff's  office  a  very  lucrative  one.  In  rural 
counties,  on  the  other  hand,  the  compensation  is  small  and 
the  duties  are  often  onerous,  particularly  in  unruly  parts 
of  the  land.  In  such  areas  the  security  of  life  and  prop- 
erty depends  to  a  considerable  extent  upon  the  alertness, 
honesty,  and  courage  of  the  sheriff.  This  is  particularly 
true  in  time  of  serious  disorder  or  riot,  when  the  sheriff 
may  not  only  summon  his  deputies  for  assistance,  but  may 
raise  the  posse  comitatus  by  sending  out  a  general  call 
for  help  to  the  citizens,  and  in  the  last  resort  may  obtain 
the  aid  of  the  state  militia. 

The  sheriff,  in  addition  to  his  functions  as  guardian  of  the  His  col- 
peace  within  the  county,  is  also  the  chief  executive  officer  J^tfon 
of  the  county  court.  It  is  through  his  office  that  the  judg-  executive 
ments  of  the  court  are  carried  out.  He  is  the  keeper  of  the 
county  jail  and  has  the  custody  of  all  prisoners  there.  He 
looks  after  the  comfort  of  juries  while  the  court  is  in  session. 
He  or  his  deputies  serve  subpoenas  upon  witnesses,  or  seize 
property  in  satisfaction  of  judgment ;  or  place  writs  of  at- 
tachment upon  property,  or  perform  whatever  other  duties 
the  court  may  request. 

The  coroner  is  another  important  county  officer.     His  (6)  the 
duty  is  to  hold  an  inquest  whenever  a  death  takes*  place  coroner- 
under  circumstances  which  excite  suspicion  of  crime.     To 
assist  him  at  the  inquest  the  coroner  usually  calls  together 
a  jury  of  citizens,  who  hear  the  evidence  and  render  a  ver- 
dict.    If  the  jury  finds  grounds  for  believing  that  a  crime  His  duties, 
has  been  committed,  it  may  so  declare  in  its  verdict,  where- 
upon the  coroner  may  usually  issue  an  order  for  the  arrest 
of  the  person  accused.     But  neither  the  coroner  nor  his 
jury  finally  determines  any  question  of  guilt  or  innocence. 
That  function  is  left  to  the  regular  courts. 

In  the  United  States  coroners  are  almost  always  elected. 


556      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Unsatis- 
factory 
character 
of  in- 
quests in 
general. 


(c)  the 

prosecuting 

attorney. 


To  perform  their  duties  efficiently  they  should  be  either 
physicians  or  lawyers,  but  often  they  are  neither.  Their 
juries,  moreover,  are  selected  by  summoning  anybody  who 
happens  to  be  near  at  hand.  On  the  whole,  therefore, 
coroner's  inquests  have  not  contributed  greatly  to  the  dis- 
covery of  crimes  or  to  the  apprehension  of  offenders.  Still 
the  whole  process  is  not  so  deserving  of  derision,  perhaps,  as 
Shakespeare  in  Hamlet  makes  it  out  to  be.1  The  office  of 
county  coroner  has  a  long  and  interesting  history  behind  it, 
and  one  might  hesitate  to  see  it  generally  abolished,  yet 
the  procedure  is  not  well  adapted  to  conditions  of  to-day. 
Massachusetts  for  over  forty  years  has  gotten  along  very 
well  without  coroners,  having  provided  for  the  appointment 
of  medical  examiners  who  make  investigations  without  the 
aid  of  improvised  juries  and  report  the  results,  if  necessary, 
to  the  regular  prosecuting  officials  for  action. 

The  regular  prosecuting  official  of  the  county  is  an  attorney 
whose  office  bears  various  designations.2  Usually  he  is 
elected  by  the  people  of  the  county  or  district.  His  chief 
duty  is  that  of  conducting  prosecutions  in  the  name  and  on 
behalf  of  the  state.  He  prepares  the  evidence  for  presenta- 
tion to  the  grand  jury  and  advises  the  jurymen  as  to  whether 
there  is  sufficient  ground  for  an  indictment.  If  an  indict- 
ment is  found,  the  prosecuting  attorney  is  responsible  for 
the  proper  handling  of  the  case  when  it  is  brought  before 
the  trial  jury.  These  officials  have  considerable  discretion 
in  the  way  of  discontinuing  prosecutions,  either  by  entering 
a  nolle  prosequi  or  by  asking  that  a  case  be  placed  on  file.3 
The  court's  approval  is  sometimes  necessary  for  such 
action,  but  more  often  the  prosecuting  attorney  takes  the 
whole  responsibility.  In  a  few  states,  including  Michigan, 
Wisconsin,  and  Minnesota,  the  requirement  of  grand  jury 
action  in  all  but  the  most  serious  criminal  cases  has  been 


1  Act  5,  Scene  1. 

2  Prosecuting  attorney  or    state's    attorney  or    district   attorney  or 
county  attorney  or  county  solicitor. 

3  A  nolle  prosequi  is  entered  when  the  prosecuting  attorney  feels  that 
there  is  no  occasion  for  pressing  an  indictment  to  trial.     Such  action  is 
popularly  termed  "nol  pressing"  an  indictment.     Placing  an  indictment 
on  file  involves  an  indefinite  postponement  of  the  prosecution,  and  while  it 
does  not  preclude  a  trial  at  some  future  date,  this  rarely  takes  place. 


COUNTY  GOVERNMENT  557 

t 

abolished.  Proceedings  are  begun  by  an  information, 
which  is  a  sworn  declaration  made  by  the  prosecuting  attor- 
ney to  the  effect  that  there  is  sufficient  ground  for  placing 
an  accused  person  on  trial. 

Other  county  officers  are  the  treasurer,  who  receives  the  (<*)  the 
revenue  and  makes  all  payments  out  of  the  county  funds,  the  ^dftor 
auditor,  who  inspects  the  accounts  and  prepares  from  time  assessor 
to  time  a  statement  of  the  county's  financial  condition  for 
presentation  to  the  county  board  }  the  assessors,  who  appraise  etc. 
property  for  taxation ;  the  clerk  of  the  county  court,  who 
looks  after  the  judicial  records ;  the  registrar  of  deeds  or 
recorder,  and  the  county  superintendent  of  schools.  Not  all 
counties  have  this  entire  set  of  officials.  In  Massachusetts, 
for  example,  there  are  no  county  auditors,  assessors,  or  school 
superintendents.  Nearly  everywhere  these  various  officials 
are  elective,  although  some  of  them  are  in  a  few  states 
appointed  by  the  county  board.  It  is  generally  admitted 
that  there  are  too  many  elective  county  officers  and  the 
result  has  been  the  selection  of  inferior  men.  The  voter's 
interest  is  centred  upon  the  candidates  for  state  office  on 
the  one1  hand  and  for  municipal  office  on  the  other.  The 
county,  coming  in  between,  gets  little  of  his  attention.  The 
consequence  is  that  county  nominations  and  elections  have 
been  proverbially  dominated  by  small  rings  of  professional 
politicians.  There  has  been  less  genuine  political  indepen- 
dence in  the  counties  than  in  the  other  areas  of  government. 

County  government,  taking  the  country  as  a  whole,  has  Actual 
not  been  conspicuously  bad,  but  it  has  been  far  from  what 
it  ought  to  be.     Corruption  and  political  dishonesty  has  govern- 
not  been  so  prevalent  as  in  the  cities.     But  mediocrity  in  ment- 
office,  unprogressiveness  in  policy,  a  failure  to  get  full  value 
for  expenditures,  favoritism  in  appointments  and  in  the 
award  of  contracts,  lack  of  popular  interest  in  county  affairs 
—  these  things  have  characterized  county  administration 
in  most  of  the  states.     The  situation  has  been  tolerated 
because  the  need  of  reform  in  other  quarters  appeared  to 
be  more  pressing.     Now  that  both   state   and   municipal 
governments  have  been  improved  the  tide  of  reform  is  di- 
recting itself  towards  county  affairs. 

The  reconstruction  of  county  government  will  involve 


558      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  need 
of  county 
recon- 
struction. 


1.   County 
should 
have  a 
chief  ex- 
ecutive. 


2.   Fewer 

elective 

offices. 


three  changes  of  far-reaching  importance  in  the  present 
system.  First  among  the  needs  of  county  government  to- 
day is  the  better  organization  of  county  executive  work. 
As  matters  now  stand  there  is  no  county  official  correspond- 
ing to  the  president,  governor,  and  mayor  in  national,  state, 
and  municipal  government.  Executive  responsibility  is 
scattered,  some  of  it  devolving  upon  the  county  board,  and 
the  remainder  accruing  to  the  various  county  officers,  each 
of  whom  is  independent  of  the  others.  "Either  the  sheriff 
should'  again  become  the  chief  executive  of  the  county, 
transferring  his  ministerial  functions  to  an  under-sheriff, 
or  some  other  officer  should  become  chief  executive,  and 
the  sheriff  be  confined  to  his  ministerial  duties  as  court 
bailiff. "  1  Probably  the  latter  alternative  would  be  the 
more  practical  as  it  would  be  difficult  to  separate  the  office 
of  sheriff  from  its  police  and  judicial  duties.  The  vesting 
of  executive  power  in  an  elective  county  president,  with 
powers  somewhat  analogous  to  those  of  a  mayor,  might 
prove  to  be  a  better  solution  of  the  problem.  At  any  rate 
the  need  of  executive  centralization  will  appear  most 
clearly  to  any  one  who  studies  the  actual  workings  of  county 
government. 

The  concentration  of  responsibility  for  the  management 
of  county  business  will  entail  a  reduction  in  the  number  of 
elective  offices.  There  is  no  good  reason  why  treasurers, 
auditors,  recorders,  and  clerks  should  be  appointed  in  cities 
and  elected  in  counties.  The  elective  principle,  when 
applied  to  these  positions,  means  an  undue  lengthening  of 
the  ballot  with  a  consequent  flagging  of  public  interest  in 
the  claims  of  individual  candidates.  With  a  dozen  or  more 
county  officials  to  be  elected  at  large  the  average  voter  will 
not  inform  himself  of  particular  qualifications  but  will  be 
guided  entirely  by  party  designations.  The  party  leaders, 
appreciating  this  lack  of  popular  interest  and  information, 
place  in  nomination  for  the  county  offices  men  who  would 
not  be  put  forward  for  positions  in  the  state  or  municipal 
government.  That  is  why  the  county  has  been  aptly  called 
"the  jungle  of  American  politics."  It  is  the  region  where 
the  voter  finds  the  greatest  difficulty  in  threading  his  way. 
iFairlie,  Ibid.,  p.  112. 


COUNTY  GOVERNMENT  559 

The  practice  of  electing  these  purely  administrative  officers 
of  county  government  has,  moreover,  encouraged  frequent 
changes  in  posts  where  experience  is  valuable  and  where 
permanence  ought  to  be  encouraged.  Too  often  a  county 
treasurer,  auditor,  or  registrar  has  no  sooner  acquired  fa- 
miliarity with  the  duties  of  his  office  than  he  is  supplanted 
by  some  other  party  worker  whose  turn  has  come  to  enjoy 
the  emoluments.  County  officers  whose  functions  are  purely 
ministerial  and  who  have  no  responsibility  for  the  shaping  of 
policy  ought  to  be  made  appointive.  The  power  of  appoint- 
ment might  well  be  given  to  the  county  board  or  to  an 
elective  chief  executive,  such  as  has  been  suggested  in  a 
preceding  paragraph. 

Civil  service  reform  has  as  yet  made  scarcely  a  ripple  3.  Civil 
upon  the  face  of  county  politics,  yet  selection  by  merit  is  a  ^form 
principle  which  ought  to  be  applied  to  subordinate  positions  should  be 
in  the  service  of  the  county  as  in  that  of  the  city,  state,  or  counties*0 
nation.     Clerks  in  courthouses,  keepers  in  jails,  attendants 
in   poorhouses,    foremen   in   road-construction    are   almost 
everywhere   chosen  by   a  strict   application   of  the  spoils 
system.     The  progress  of  civil  service  in  other  fields,  more-, 
over,  has  tended  to  make  the  county  service  a  last  refuge 
for  the  incompetent.     The  march  of  the  merit  system  has 
been  impeded  there  by  the  machine-like  organization  and 
overwhelming   political   influence   of   the    "county   rings" 
whose    concerted   pressure   upon   the    state   legislature   is 
difficult  to  overpower.     But  the  wedge  has  been  inserted 
and  the  salient  will  be  widened  in  time. 

Special  problems  of  county  government  arise  whenever  a  The  special 
large  city  spreads  itself  over  all  or  a  great  portion  of  the  o^eet™8_ 
county  area.     This  is  the  situation,  for  example,  in  Cook  poiitan 
County  which  contains  Chicago,  in  Suffolk  County  which  counties- 
shelters   Boston,   in   Philadelphia   County   which   includes 
Philadelphia,  and  so  on.     In  some   such   cases,  as  in   San 
Francisco,  Philadelphia,  and  Boston,  the  same  body  acts  as  a 
city  council  and  county  board  combined.     In  other  instances 
there  are  two  separate  bodies  with  powers  which  interlock, 
sometimes  overlap,  and  are  frequently  ill-defined. 


CHAPTER  XXXIX 

TOWNS,   TOWNSHIPS,   AND   VILLAGES 

The  FOR  purposes  of  local  government  counties  are  usually 

araeuTof  divided  into  towns,  districts,  or  townships,  but  whenever  any 
local  portion  of  a  county  becomes  urban  in  character  through  the 

menthi  growth  of  population  it  is  commonly  organized  as  an  in- 
the  corporated  village,  town,  borough,  or  city.,  The  practice  and 

state?1  ^e  terminology  are  very  different  in  various  parts  of  the 
country,  so  that  any  clear  and  accurate  presentation  of  local 
government  throughout  the  United  States  is  a  task  of  con- 
siderable difficulty.  All  that  can  be  attempted  in  this 
chapter,  therefore,  is  to  set  forth  the  general  principles 
according  to  which  local  administration  is  carried  on  and  to 
describe  in  a  summary  way  the  organization  of  the  more 
important  units  of  local  government,  particularly  the  New 
England  town  and  the  western  township. 

Relation  Local  government  in  the  United  States,  it  need  hardly  be 

to  state  explained,  is  exclusively  a  matter  of  state  control.  The 
govern-  national  government  has  nothing  to  do  with  it.  Each  state 
ment.  ]ias  £u^  pOwer  to  devise  its  own  system  of  town,  township, 

district,  or  borough  government,  and  to  modify  this  system 
at  will.  But  although  each  state  is  supreme  as  respects  its 
own  form  and  functions  of  local  government,  the  state 
legislatures  are  not  always  given  a  wholly  free  hand  in  such 
matters.  The  state  constitutions  contain  many  limiting 
provisions  which  guarantee  to  the  local  units  their  existence 
and  the  possession  of  various  privileges.  And  as  constitu- 
tions are  revised,  the  tendency  is  to  insert  more  of  these 
restrictive  provisions.  Nevertheless,  the  towns,  townships, 
villages,  and  other  communities  are  largely  under  the  leg- 
islature's control.  Acts  of  the  legislature  provide  what 
officers  a  community  shall  have,  how  they  shall  be  chosen, 

560 


TOWNS,  TOWNSHIPS,  AND  VILLAGES  561 

and  what  their  duties  shall  be.  Such  acts  are  usually  of  a 
general  character  applying  to  all  local  areas  of  the  same  legal 
character,  that  is,  to  towns  or  townships  as  a  class ;  but  * 
special  laws  applying  to  individual  communities  are  also 
common  except  in  states  where  they  are  forbidden  by 
constitutional  provision. 

Among  the  various  areas  of  local  government  the  New  The  New 
England  town  is  one  of  the  oldest  and  in  every  respect  the 
most  interesting.  The  town  is  not  always,  as  the  name  would 
ordinarily  imply,  a  thickly  settled  community.  Some  New 
England  towns,  it  is  true,  are  towns  in  the  generally  accepted 
sense,  or  places  with  populations  running  into  the  thousands. 
Most  of  them,  however,  are  what  would  elsewhere  be  called 
townships,  that  is  to  say,  agricultural  regions  covering  twenty 
or  thirty  square  miles.  They  differ  from  the  western  town- 
ships in  that  they  are  not  of  regular  shape  or  uniform  area, 
having  been  laid  out  in  early  days  according  to  no  fixed 
system  of  survey.  They  are  as  diverse  in  population,  more- 
over, as  in  size  or  shape.  One  Massachusetts  town  has  a 
population  of  nearly  forty  thousand ;  another  has  less  than 
four  hundred.  In  Maine,  Vermont,  and  Connecticut  a  few 
villages  or  boroughs  have  been  incorporated  within  the  limits 
of  the  towns ;  but  in  general  this  practice  has  not  been  pur- 
sued. A  town  remains  intact  until  its  people  secure  incor- 
poration as  a  city. 

The  New  England  town  does  not  possess  a  charter  of  in-  its  legal 
corporation,  yet  it  has  practically  all  the  rights  and  privi-  8tatua- 
leges  of  a  municipal  corporation.  Originally  the  towns 
derived  their  powers  from  the  common  law,  but  since  the 
Revolution  it  has  been  well-settled  legal  doctrine  that  they 
can  claim  no  powers  except  such  as  "have  been  expressly 
conferred  by  statute  or  which  are  necessary  for  conducting 
municipal  affairs/'1  The  idea  that  towns  have  inherent  and 
inalienable  rights  because  they  are  in  many  cases  older  than 
the  states  is  widely  held  by  town  officers  in  New  England ; 
but  it  is  without  any  legal  basis.  The  New  England  town  is 
as  completely  under  the  thumb  of  the  state  legislature  as  is 
the  western  township  or  any  other  area  of  local  government. 

To  some  extent  the  powers  now  possessed  by  the  towns 

1  Bloomfield  vs.  Charter  Oak  Bank,  121  U.  S.  129. 
2o 


562      THE  GOVERNMENT  OF  THE  UNITED  STATES 


General 
powers 
of  towns. 


The  town 
meeting. 


Their 
organi- 
zation 
and 
functions. 


have  been  conferred  by  a  general  law  dealing  with  town 
government;  but  special  statutes  have  also,  from  time  to 
time,  added  new  privileges  or  functions.  To-day  the  New 
England  town  has  substantially  all  the  authority  which  a 
city  charter  conveys.  It  may  sue  and  be  sued,  make 
contracts,  levy  taxes,  borrow  money,  and  own  property. 
It  may  by  ordinances  or  by-laws  provide  for  the  protection 
of  life  and  property,  the  public  health  and  public  morals. 
It  has  the  usual  powers  of  a  municipal  corporation  to  build 
and  maintain  streets  and  sewers,  to  provide  water  supply, 
public  lighting,  police  and  fire  protection,  parks  and  public 
buildings.  It  is  required  to  establish  schools,  and  it  may 
maintain  a  hospital,  a  public  library,  and  a  market.  Poor 
relief  is  also  a  town  function  in  New  England.  The  town, 
in  fact,  provides  many  services  which  in  other  parts  of  the 
country  are  among  the  functions  of  counties. 

The  chief  organ  of  town  government  in  New  England  is 
the  town  meeting.  An  annual  town  meeting  is  usually  held 
in  May,  with  special  meetings  whenever  necessary,  but  not 
more  than  two  or  three  special  meetings  are  commonly  called 
during  the  year.  Every  voter  of  the  town  is  entitled  to 
attend  the  annual  and  the  special  town  meetings,  both 
of  which  convene  in  the  town  hall.  As  a  rule,  however,  not 
more  than  half  of  them  do  attend,  and  the  percentage  is 
frequently  much  smaller.  The  town  meeting  selects  its  own 
presiding  officer,  who  is  known  as  the  moderator,  but  this 
honor  customarily  goes  year  after  year  to  some  prominent 
citizen.1 

Town  meetings  are  called  with  considerable  formality,  and 
their  procedure  is  strictly  regulated  by  law  and  tradition. 
The  call  is  in  the  form  of  a  warrant  issued  by  the  selectmen 
to  the  constables  of  the  town  commanding  them  "to  notify 
and  warn"  the  townsmen  and  to  "make  due  return"  of 
their  having  done  so.  The  warrant  specifies  item  by  item 
the  matters  which  are  to  be  brought  before  the  meeting  and 
no  other  business  can  be  considered.  At  the  annual  meeting 
the  various  town  officers  are  elected  for  the  year,  a  poll  being 

1  It  is  the  highest  honor  that  the  townsmen  can  bestow  and  is  appre- 
ciated accordingly.  Even  governors  and  United  States  senators  do  not 
disdain  to  serve  as  moderators  at  the  annual  meetings  in  their  home  towns. 


TOWNS,  TOWNSHIPS,  AND  VILLAGES  563 

opened  for  this  purpose  whenever  there  is  a  contest.  Usually 
this  polling  takes  place  in  the  morning,  the  afternoon  being 
devoted  to  a  business  session  in  which  the  appropriations 
are  voted  and  all  matters  of  general  town  policy  settled.  In 
the  more  populous  towns,  however,  the  polling  often  con- 
tinues throughout  the  day,  with  the  business  session  in  the 
evening.  When  the  warrant  contains  many  items,  it  is 
impossible  to  finish  the  entire  docket  of  business  at  a  single 
session,  in  which  case  the  meeting  is  adjourned  to  a  subse- 
quent afternoon  or  evening,  and  still  further  adjourned  if 
necessary. 

In  the  smaller  rural  towns  the  occasion  of  the  annual  town  HOW  the 
meeting  has  always  been  and  still  is  a  neighborhood  holiday.  ^£r 
The  debate,   particularly  upon  matters  which  the  world  1   in 
would  not  regard  as  of  momentous  importance,  is  often  smaller 
spirited    and    piquant,  with  no  dearth  of  humor  and  an  towns- 
occasional   flare-up   of    personalities.     It    is   a  picturesque 
gathering,  this  annual  meeting  in  a  small  New    England 
town,  with  its  copious  flow  of  homely  oratory,  its  insistence 
upon  settling  even  the  smallest  details  by  common  voice,  its 
prodigious  emission  of  tobacco  smoke,  and  the  general  retail 
of  local  gossip  which  takes  place  around  the  doors.     In  the  2.  in 
larger  towns  things  are  quite  different.     There  the  business 
of  the  town  meeting  is  for  the  most  part  cut  and  dried  before- 
hand; a  few  active  politicians  monopolize  the  debate,  and 
the  large  amount  of  business  necessitates  the  strict  applica- 
tion of  parliamentary  rules.     In  some  of  these  larger  towns, 
moreover,  it  has  become  the  practice  to  have  the  moderator 
appoint  a  committee,  usually  of  fifteen  or  more  townsmen, 
which  makes  recommendations  to  the  town  meeting  on  all 
matters  in  the  warrant,   and  these  recommendations  are 
usually  adopted. 

The  town  meeting  ceases  to  be  a  satisfactory  organ  of  Recent 
local  government  when  the  population  of  the  town  exceeds  ^^es 
five  or  six  thousand.     When  that  point  is  reached,  a  reason-  town 
ably  full  attendance  of  the  voters  becomes  impractical  and  meetm£- 
the  control  of  the  town  policy  passes  into  the  hands  of  what- 
ever element  happens  to  be  the  stronger  or  more  aggressive 
politically.     For  this  reason  many  towns,  on  reaching  an 
unwieldy   size,    apply   for  incorporation   as   cities.     Some 


564      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

selectmen. 


Their 
functions. 


others,  however,  have  been  reluctant  to  give  up  local  in- 
stitutions which  have  served  so  long,  and  hence  continue  a 
scheme  of  government  which  no  longer  suits  their  needs. 
Others,  again,  have  attempted  to  modify  the  town  meeting 
without  actually  abolishing  it,  but  these  halfway  measures 
do  not  seem  to  be  proving  altogether  successful.1  There  is, 
in  fact,  no  practical  halting  place  between  direct  and  repre- 
sentative government.  A  town  meeting  must  represent  one 
or  other  of  these  types;  it  cannot  well  embody  both.  A 
"  limited  "  town  meeting,  accordingly,  is  not  a  town  meeting 
at  all,  but  merely  a  camouflaged  town  council  of  unwieldy 
size. 

In  the  earliest  days  of  seaboard  settlement  the  town 
meeting  was  the  sole  organ  of  town  government.  But  it 
was  soon  found  necessary  to  have  officials  who  would  carry 
the  decisions  of  the  town  meeting  into  effect  and  who  would 
also  deal  with  minor  matters  in  the  intervals  between  the 
meetings.  Hence  developed  the  practice  of  choosing  at  the 
annual  town  meeting  a  committee  of  the  townsmen,  usually 
three  or  five  in  number,  known  as  the  selectmen.2  Originally 
these  selectmen  were  chosen  for  one  year  only,  and  that 
practice  is  generally  continued,  except  in  Massachusetts, 
where  the  term  is  three  years  in  many  of  the  towns, 
one  selectman  retiring  annually.  But  in  any  event  re- 
elections  are  common,  and  a  selectman  who  is  willing  to 
serve  is  frequently  continued  in  office  for  ten  or  a  dozen 
years. 

The  selectmen  form,  as  it  were,  the  executive  committee 
of  the  town  meeting.  They  have  no  legislative  authority, 
pass  no  by-laws,  levy  no  taxes,  borrow  no  money,  and  make 
no  appropriations.  All  these  things  require  action  by  the 
town  meeting.  Nor  do  the  selectmen  appoint  the  town 
officers.  Even  their  administrative  functions,  although  mul- 
tifarious, are  of  a  subsidiary  character.  They  prepare  the 
warrants  for  the  annual  or  special  meetings ;  they  grant 

1  In  1916  the  town  of  Brookline,  Massachusetts,  with  a  population  of 
about  35,000,  was  permitted  by  a  special  act  of  the  Massachusetts  legis- 
lature to  adopt  a  system  of  "limited  town  meetings."     The  town  is  now 
divided  into  precincts,  each  of  which  elects  a  quota  of  representatives. 

2  In  Rhode  Island  this  body  is  not  known  as  the  board  of  selectmen 
but  as  the  town  council. 


TOWNS,  TOWNSHIPS,  AND  VILLAGES  565 

licenses  under  the  authority  of  the  state  laws ;  they  lay  out 
highways  and  sewers  for  acceptance  by  the  town  meeting ; 
they  make  the  arrangements  for  state  and  local  elections, 
and  they  have  immediate  charge  of  town  property.  They 
usually  award  the  contracts  for  public  work,  and  all  bills 
against  the  town  for  work  or  services  must  be  approved  by 
them  before  being  paid.  Schools  are  in  charge  of  a  school 
committee  elected  at  the  annual  town  meeting.  The  select- 
men may  serve  as  overseers  of  the- poor  or  as  assessors  or  as 
the  town  board  of  health ;  but  in  towns  of  any  considerable 
size  these  functions  are  intrusted  to  separate  boards,  the 
members  of  which  are  also  chosen  at  the  annual  town  meet- 
ing. The  New  England  town  does  not,  therefore,  possess  a 
centralized  executive  authority.  The  selectmen  share  ex- 
ecutive functions  with  various  boards  and  officials  who  are 
not  under  their  control. 

The  number  and  nature  of  these  boards  and  officials  other 
depend  upon  the  size  of  the  town.  Most  of  the  towns  have  ^°ds 
a  school  committee  or  board  of  school  trustees,  a  board  of  and 
health,  and  a  board  of  overseers  of  the  poor.  A  large  town  officials- 
may  also  have  a  water  board,  a  library  board,  and  a  board 
of  park  commissioners.  In  Massachusetts  each  town  has 
a  town  planning  board  with  advisory  functions  only.  As 
for  administrative  officials,  every  town  has  its  town  clerk, 
who  is  perhaps  the  most  important  among  local  officers. 
Many  functions  are  devolved  upon  him  by  state  law,  such 
as  the  issuing  of  marriage  licenses,  the  registration  of  births 
and  deaths,  the  transmission  of  various  reports  to  the  state 
authorities,  and  in  some  states  the  recording  of  deeds  and 
mortgages.  In  addition,  the  town  clerk  is  the  keeper  of  the 
local  records  and  the  general  factotum  of  the  selectmen. 
He  is  elected  by  the  town  meeting,  receives  a  salary,  and  is 
usually  continued  in  office  as  long  as  he  does  his  work  satis- 
factorily. Each  town  also  has  its  assessors,  its  town  treas- 
urer, its  constables,  and  often  a  considerable  list  of  minor 
officials,  such  as  poundkeepers,  fence  viewers,  sealers  of 
weights  and  measures,  and  so  on.  These  officers  are  usually 
chosen  by  the  town  meeting,  but  in  some  towns  the  selectmen 
appoint  to  the  minor  posts.  In  four  of  the  New  Eng- 
land states  the  justices  of  the  peace  are  elected  by  the 


566      THE  GOVERNMENT  OF  THE  UNITED  STATES 

townsmen ; l  in  the  other  two  they  are  appointed  by  the 
governor. 

why  so  One  reason  for  this  multiplication  of  administrative  boards 

anc*  officials,  even  in  towns  which  have  relatively  small 
populations,  may  be  found  in  the  fact  that  most  town  officers 
serve  without  pay.  If  the  work  were  concentrated  in  a  few 
hands,  there  would  be  a  demand  for  remuneration.  In  the 
smaller  communities  this  plan  of  administration  by  scat- 
tered and  unpaid  agencies  serves  well  enough  and  has  the 
merit  of  cheapness ;  but  in  the  larger  towns,  where  there  is 
much  public  business  to  be  done,  it  falls  far  short  of  the 
requirements  and  has  had  to  be  in  part  abandoned.  These 
places,  as  a  rule,  are  now  putting  paid  officials  in  charge  of 
the  more  important  services. 

Inertia  and  the  influence  of  long-standing  custom  also 
count  for  much  in  the  perpetuation  of  the  present  system. 
The  various  boards  and  minor  offices  provide  places  for 
a  large  number  of  prominent  townsmen ;  indeed  it  is  a 
rare  individual  who  can  live  in  any  small  New  England 
town  for  many  years  without  being  named  to  some  official 
post,  be  it  only  that  of  constable,  fence  viewer,  field- 
driver,  or  hog-reeve.2  It  is  not  that  the  craving  for  public 
office  is  greater  in  New  England  than  elsewhere,  but  the 
continuance  of  these  minor  posts  entails  no  expense  and  the 
townsmen  see  no  urgent  reason  for  abolishing  them.  There 
is  need,  however,  for  a  considerable  reduction  in  the  number 
of  elective  town  officers,  and  a  movement  in  this  direction  is 
already  under  way.  The  adoption  of  the  commission  form 
of  government  by  cities  has  had  its  indirect  influence  upon 
public  sentiment  in  many  of  the  larger  New  England  towns. 

New  England  town  government  has  three  centuries  of  good 
tradition  behind  it  and  enjoys  a  splendid  reputation,  which, 
however,  is  not  wholly  deserved.  Those  who  are  not  in  close 
touch  with  the  actual  facts  of  the  situation  imagine  that 

1  Connecticut,    New   Hampshire,   Vermont,   and   Rhode    Island.     In 
Rhode  Island  some  justices  are  also  appointed  by  the  governor.     Only  in 
the  first  three  states  have  the  justices  any  judicial  authority. 

2  In  some  towns  it  is  the  custom  at  each  annual  town  meeting  to 
elect  to  this  last-named  office  all  the  young  men  who  have  been  married 
during  the  year.     This  honor  is  assumed  to  represent  the  community's 
wedding  gift. 


TOWNS,  TOWNSHIPS,  AND  VILLAGES  567 

these  towns  are  miniature  republics,  left  to  handle  their  own  Erroneous 
local  affairs  in  their  own  way,  free  from  legislative  inter- 
ference,  and  governing  themselves  admirably  by  the  device  New 
of  a  mass  meeting.     That  is  a  pretty  picture,  no  doubt,  but 
far  from  being  a  true  likeness.  govem- 

The  New  England  town  has  in  reality  no  more  home-  ment* 
rule  than  the  New  England  city.  It  is  buffeted  in  all 
directions  by  the  action  of  the  state  legislature ;  and 
scarcely  a  year  ever  passes  without  new  duties  being 
thrown  by  the  state  upon  town  officers.  The  New  Eng- 
land town  has  a  form  of  government  which  serves  well 
enough  for  a  very  small  community  where  there  are  no  im- 
portant public  services  to  be  provided,  where  the  people  are 
all  or  nearly  all  of  native  stock,  and  where  every  one  knows 
his  neighbors.  But  in  its  application  to  places  of  several 
thousand  inhabitants,  and  particularly  to  industrial  towns 
which  have  a  considerable  proportion  of  foreign-born  voters, 
it  has  no  marked  merits  except  those  of  age  and  good  his- 
torical association.  In  point  of  actual  accomplishment,  it 
is  no  better  than  the  newer  forms  of  local  government  which 
exist  in  other  parts  of  the  country. 

Towns  and  townships,  as  areas  of  local  government,  exist  Towns 
in  the  great  group  of  northern  and  central  states  from  New 
York  and  Pennsylvania  to  Nebraska  and  the  Dakotas.     In  the 
the  older  of  these  states  the  towns  are  of  irregular  shape  and 
vary  considerably  in  size;  but  in  the  newer  states  the  ter-  central 
ritory  is  mapped  out  into  uniform  blocks,  six  miles  square,  states* 
and  these  areas  are  usually  called  townships.     The  survey- 
ing was  done  when  these  regions  were  territories  under  the 
jurisdiction  of  Congress,  hence  the  divisions  are  sometimes 
called  congressional  townships.     In  some  of  the  states,  both 
old  and  new,  the  town  meeting  is  an  institution  of  local 
government,  but  nowhere  outside  of  New  England  has  it 
developed  much  vitality,  and  its  chief  function  is  that  of 
electing  the  town  or  township  officers.1     In  other  states 
there  is  no  town  or  township  meeting,  the  work  of  local 

1  The  chief  reason  for  this,  no  doubt,  is  the  purely  artificial  nature  of 
the  township.  It  has  no  social  homogeneity  or  local  self-consciousness 
like  the  New  England  town.  By  incorporation,  moreover,  the  thickly 
settled  portions  of  townships  are  usually  organized  as  cities  or  villages, 
thus  breaking  into  the  original  unit. 


568      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

organs  of 
town  and 
township 
govern- 
ment. 


The  in- 
corporated 
munici- 
palities, 
villages, 
and 
boroughs. 


administration  being  wholly  carried  on  by  officers  elected 
at  the  polls.  In  a  few  cases,  moreover,  the  counties  have 
not  been  divided  into  towns  or  townships  at  all. 

The  administrative  work  of  town  or  township  government 
is  carried  on  either  by  a  board  of  trustees  or  by  a  single 
officer  known  as  the  supervisor.1  Where  the  board  system 
prevails  there  are  different  ways  of  constituting  the  board, 
although  its  members  are  always  elected  by  the  voters.  The 
powers  of  the  board  also  vary  from  state  to  state.  So  it  is 
with  the  single  supervisor,  an  elective  official,  whose  functions 
are  more  extensive  in  some  of  the  states  than  in  others. 
Towns  and  townships  also  have  their  clerks,  treasurers, 
assessors,  constables,  highway  overseers,  justices  of  the 
peace,  and  other  local  officials,  all  or  most  of  them  elected. 

Township  government  has  been  greatly  weakened  by  the 
practice  of  incorporating  as  a  separate  municipality  any 
portion  of  the  township  which  becomes  urban  in  character. 
Nearly  all  the  states  now  make  provision  by  general  law  for 
the  organization  of  these  thickly  settled  areas  under  the 
name  of  villages,  boroughs,  incorporated  towns,  or  cities. 
The  usual  course  is  for  the  inhabitants  to  present  a  petition 
to  some  designated  officer,  who  submits  the  question  of 
incorporation  to  a  vote  of  the  people,  and  if  they  decide 
affirmatively,  the  petition  is  granted.  The  region  is  there- 
upon incorporated  as  a  village,  borough,  town,  or  city,  as  the 
case  may  be.  Usually  there  is  a  minimum  requirement  as 
to  population :  from  two  hundred  to  three  hundred  in  the 
case  of  a  village,  from  two  thousand  to  twelve  thousand 
where  the  petition  is  for  incorporation  as  a  city. 

When  a  region  is  thus  incorporated,  it  passes  from  the  juris- 
diction of  the  township  officers  and  sets  up  its  own  local^gov- 
ernment.  In  the  case  of  a  village  this  government  commonly 
consists  of  a  board  of  trustees  or  a  council  with  from  three  to 
nine  elected  members,  together  with  a  chief  executive  officer, 
called  a  mayor  or  village  president,  who  is  either  chosen 

1  The  former  plan  is  followed  in  Pennsylvania,  Ohio,  Iowa,  Minnesota, 
North  Dakota,  and  South  Dakota ;  the  latter  in  New  York,  Michigan, 
Illinois,  and  Wisconsin.  In  the  last-named  state  the  official  is  called  the 
town  chairman.  In  Indiana,  Missouri,  Kansas,  and  Oklahoma  he  is 
called  the  township  trustee.  John  A.  Fairlie,  Local  Government  in  Coun- 
ties, Towns,  and  Villages  (N.  Y.,  1906),  p.  175. 


TOWNS,  TOWNSHIPS,  AND  VILLAGES  569 

by  the  trustees  or  by  the  village  voters.  In  the  case  of  a 
borough,  an  incorporated  town,  or  a  city,  the  organization  is 
along  somewhat  the  same  lines ;  but  the  governmental 
mechanism  is' more  elaborate.  The  general  laws  of  each 
state  provide  what  powers  these  local  governments  shall 
exercise,  but  they  generally  include  the  making  of  by-laws, 
the  management  of  streets,  water  supply,  sanitation,  police, 
fire  protection,  and  public  recreation.  Taking  the  United 
States  as  a  whole,  there  are  more  than  ten  thousand  of  these 
small  incorporated  municipalities.  They  differ  so  widely 
in  size,  population,  form  of  government,  and  functions  that 
no  general  description  will  hold  strictly  true  in  relation  to 
all  or  even  to  any  large  number  of  them. 

In  the  southern  states  the  county  remains  the  dominant  area  The 
of  local  government.    There  are  no  towns  as  in  New  England,  Divisions 
and  only  in  scattered  regions  any  system  of  organized  town-  in  southern 
ship  government.     Instead  of  townships  the  counties  usually  8tates* 
have  districts  for  such  purposes  as  the  management  of  schools, 
the  building  of  highways,  the  holding  of  elections,  and  the 
administration  of  justice.     These  districts  are  not  corporate 
entities,  like  towns  or  townships  ;  they  have  no  taxing  power 
and  they  exist  for  certain  designated  purposes  only.     In  some 
southern  states  they  are  called  magisterial  districts  ;  in  others 
the  name  township  is  used,  although  the  term  is  misleading. 
Delaware  keeps  the  historic  English  "hundred,"  a  shire  divi- 
sion which  in  Anglo-Saxon  times  contributed  one  hundred 
warriors  to  the  feudal  array.     These  various  districts  have 
their  elective  officers  whose  powers  are  fixed  by  law. 

The  vitality  of  local  government  in  the  southern  states  Why 
ceases  with  the  county,  the  city,  and  in  some  cases  the  incor-  ^^cgli 
porated  village.     This  is  an  interesting  phenomenon  in  the  govem- 
American  political  system,  and  there  must  be  a  reason  for  it.  J^f^ 
There  are,  indeed,  several  reasons.     One  of  them  is  historical,  developed 
the  system  of  great  plantations  and  slavery  before  the  Civil 
War.     In  those  days  even  a  considerable  tract  of  territory 
contained  very  few  voters,  for  the  slave  had  no  political 
rights.     The  planters  controlled  local  affairs,  and  the  county 
was  none  too  large  for  their  public  activity.     There  were  no 
public  schools  ;  there  was  very  little  public  road-building,  and 
no  public  poor  relief  was  required  because  each  planter  looked 


570      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The 

county 
divisions 
in  states 
of  the 
Far  West. 


after  the  people  of  his  own  estate.  There  was,  therefore, 
little  or  no  need  for  community  administration. 

With  the  abolition  of  slavery  some  development  of  township 
or  village  government  might  have  been  expected,  but  several 
factors  stood  in  the  way.  The  slaves  were  set  free,  but  as 
matters  turned  out,  they  were  not  destined  to  become  voters 
except  for  a  short  time  during  the  era  of  reconstruction. 
Their  descendants,  who  form  a  large  element  in  the  rural 
population  of  the  South,  are  for  the  most  part  without 
political  power.  The  systematic  organization  of  townships 
would  only  serve  to  make  negro  disfranchisement  more 
conspicuous  and  perhaps  more  difficult  to  defend.  A  town 
meeting  attended  by  negroes  in  almost  any  southern  state 
would  be  unthinkable.  Such  a  meeting,  if  restricted  to 
whites,  on  the  other  hand,  would  have  a  slim  attendance  in 
some  rural  areas  of  the  South.  After  the  Civil  War  some 
townships,  commonly  known  as  reconstruction  townships, 
were  established  in  various  southern  states,  and  the  new 
colored  voters  at  once  took  control  of  them.  The  experience 
of  these  few  years  is  one  which  the  white  citizens  of  the  South 
have  not  forgotten.  When  the  opportunity  came,  they 
abolished  the  reconstruction  townships,  and  there  has  since 
been  no  serious  thought  of  reestablishing  them.  In  a  word, 
neither  historical,  ethnic,  nor  geographic  considerations  have 
favored  the  growth  of  local  self-government  as  applied  to 
small  areas  in  this  region  of  the  country. 

Finally,  in  the  far  western  states,  the  system  of  county 
divisions,  commonly  known  as  precincts,  is  more  or  less 
general.  It  is  also  a  common  practice  to  divide  the  county 
into  school  districts,  judicial  districts,  and  road  districts, 
each  for  the  purpose  indicated  by  its  name  and  each  with 
elective  officers.  The  county  in  these  sections  is  the  all- 
important  unit.  When  its  authorities  cannot  conveniently 
carry  out  all  the  work  that  needs  to  be  done,  a  division  into 
districts  is  made  for  single  functions.  Population  in  these 
states  is  even  yet  too  sparse  to  warrant  the  general  estab- 
lishment of  organized  townships.  In  none  of  them  is  the 
density  more  than  a  dozen  persons  to  the  square  mile,  and  in 
some  it  is  not  more  than  half  that  figure.  Townships,  if 
created,  would  have  on  the  average  only  fifty  or  sixty  voters, 


TOWNS,  TOWNSHIPS,   AND  VILLAGES  571 

not  enough  to  form  a  local  electorate.  Wherever  the  popu- 
lation is  compact,  incorporated  villages  or  cities  have  been 
created ;  but  for  the  rest  of  the  territory  the  county  or  its 
special  divisions  are  adequate.  Not  improbably,  however, 
as  these  regions  become  more  thickly  settled,  the  organized 
civil  township  of  the  central  states  will  find  its  way  to  the 
Pacific  slope. 


CHAPTER  XL 


A  century 
of  city 
growth. 


THE  AMERICAN  CITY 

THE  development  of  large  urban  communities,  or  cities, 
has  been  the  most  striking  social  phenomenon  of  the 
past  ten  decades.  England,  a  hundred  years  ago,  was 
the  only  country  in  which  the  inhabitants  of  cities  formed 
any  considerable  fraction  of  the  national  population,  and 
even  there  it  was  less  than  forty  per  cent.  The  United 
States,  in  1820,  contained  only  about  a  dozen  places 
with  populations  exceeding  eight  thousand,  and  taking 
these  as  a  whole  they  contained  less  than  five  per  cent  of 
the  country's  total.  In  1920,  unless  all  the  indications 
are  misleading,  the  number  of  such  communities  will  be 
nearly  a  thousand  and  they  will  contain  nearly  forty- 
five  per  cent  of  the  American  people.1  The  movement  of 
the  people  from  county  to  town  has  thus  assumed  huge  pro- 
portions, especially  in  recent  years,  and  its  strength  shows 
as  yet  no  signs  of  abating. 

1  The  following  table  shows  the  development  of  urban  centres  in  the 
United  States  by  ten-year  periods : 


YEAR 

NUMBER  op  PLACES 
WITH  MORE  THAN 
8,000 

TOTAL  POPULATION  INCLUDED 

THEREIN 

PERCENTAGE  op  NA- 
TIONAL POPULATION 
INCLUDED 

1820 

13 

475,135 

4.9 

1830 

26 

864,509 

6.7 

1840 

44 

1,453,994 

8.5 

1850 

85 

2,897,586 

12.5 

1860 

141 

5,072,256 

16.1 

1870 

226 

8,071,875 

20.9 

1880 

291 

11,450,894 

22.8 

1890 

449 

18,327,987 

29.1 

1900 

556 

25,142,978 

33.1 

1910 

778 

35,726,720 

38.8 

572 


THE  AMERICAN  CITY  573 

Various  factors  have  contributed  to  this  extraordinary  Reasons 
development    of    urban    communities.1     Improvements    in  f^^G 
agriculture,  for  one  thing,  have  released  men  from  the  soil,  growth  of 
permitting  great  increases  in  the  production  of  foodstuffs 
without  a  corresponding  increase  in  the  amount  of  labor 
required.     This  has  permitted  and   even  encouraged  the 
exodus  of  young  men  and  women  from  the   rural  areas. 
Industrial  causes,  too,  have  been  of  great  importance :  the 
rise   and   extension   of  the  factory  system  with  its  never 
satiated  demand  for  labor  in  the  cities  and  towns.     "God 
made  the  country,  and  man  made  the  town,"  Cowper  tells 
us,  and  that  is  true  in  a  very  literal  sense ;  for  man  devised 
the  means  of  utilizing  steam  power,  and  steam  power  has 
revolutionized  the  order  of  human  life  in  civilized  lands. 

Factories  congregate  in  cities,  mainly  in  large  cities,  and 
where  the  factories  are  there  will  the  laborers  be  gathered 
together.  Commerce  also  has  had  its  place  as  a  contribut- 
ing cause  of  city  growth.  Nearly  all  the  great  centres  of 
population  in  both  the  Old  World  and  the  New  are  situated 
on  navigable  waters.  It  is  hardly  a  mere  accident  that  the 
American  cities  of  two  hundred  thousand  people  or  more 
which  are  not  situated  upon  navigable  waters  can  be 
counted  on  the  fingers  of  one  hand.  Railroad  trans- 
portation, furthermore,  has  helped  to  build  up  the  large 
communities,  making  it  easy  to  get  raw  materials  and  to 
market  the  products  of  manufacture.  The  flood  of  alien 
immigration  during  the  fifty  years  between  the  close  of  the 
Civil  War  and  the  opening  of  the  great  European  conflict 
directed  itself  chiefly  to  the  cities  for  various  reasons.  And 
these  are  only  the  outstanding  causes.  Political  factors, 
such  as  the  choice  of  a  place  as  the  state  capital  or  county 
seat,  have  contributed  to  the  upbuilding  of  some  cities ; 
educational  advantages  have  helped  as  many  more.  Im- 
provements in  sanitation,  in  housing  methods,  and  in 
public  recreation  have  made  the  city  a  better  place  for 
men  to  live  in.  Its  call  has  become  irresistible. 

There  are  more  cities  in  the  United  States  than  in  any 
other  country.  Among  the  dozen  largest  cities  of  the 

1  A.  F.  Weber,  The  Growth  of  Cities  in  the  Nineteenth  Century  (N.  Y., 
1899). 


574      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Effects 
of  urban 
expansion. 


The  city 
as  a  social 
unit. 


Traits 
of  its 
population. 


The 

attitude 
of  docility. 


world,  five  at  least  are  American.  At  the  present 
time  there  are  ten  American  cities  with  populations  ex- 
ceeding half  a  million  and  twenty-five  with  populations 
above  a  quarter  of  a  million.  More  than  a  hundred 
cities  in  the  United  States  have  over  60,000  people.  The 
nation  is  becoming  urbanized  at  a  rapid  rate,  so  much  so 
that  the  United  States  can  no  longer  be  called  a  rural 
land.  In  another  decade  or  two  the  urban  section  of  the 
population,  in  all  likelihood,  will  have  gained  the  mastery. 

This  is  a  fact  of  great  social  significance,  for  the  influence 
of  cities  upon  the  national  life  is  much  greater  than  their 
numerical  strength  in  the  census  figures  would  imply. 
It  is  the  cities  that  supply  the  leaders  in  all  branches  of 
activity :  political,  social,  and  economic.  Through  their 
newspapers,  through  the  various  organizations  which  centre 
there,  and  through  their  leadership  in  every  form  of  propa- 
ganda it  is  the  cities  that  mould  the  public  opinion  of  the 
nation  to  a  large  degree.  No  country  can  change  from  a 
rural  to  an  urban  land  without  some  transformation  in  its 
political  temperament,  its  social  complexity,  and  in  the 
nature  of  its  economic  problems. 

Many  things  differentiate  the  city  from  the  rural  area. 
The  occupations  of  its  people  are  highly  diversified,  so 
that  no  bond  of  common  vocation  and  economic  inter- 
est holds  them  together  as  is  the  case  with  agricultural 
communities.  Division  of  labor  in  industry  and  commerce 
is  carried  to  its  zenith  in  the  large  urban  centres,  and  extreme 
specialization  in  any  field  of  activity  usually  narrows  the 
horizons  of  men.  It  develops  a  personal  expertness  in 
doing  some  one  thing,  with  a  dependence  upon  others  for 
everything  else.  "  If  disorder  occurs  in  a  city,  it  is  to  be  put 
down  by  a  professional  police  force ;  if  a  fire  breaks  out,  it  is 
to  be  extinguished,  again,  by  a  professional  fire  service ; 
if  contagious  disease  appears,  it  is  to  be  dealt  with,  again, 
by  a  professional  health  department."  1  'Hie  city-dweller 
looks  for  professional  guidance  in  philantl^  opy,  in  recreation, 
even  in  politics.  The  whole  tendency  of  city  life  is  towards 
docility  and  the  extinction  of  independence  in  thought  and 

*F.  J.  Goodnow,  City  Government  in  the  United  States  (N.  Y.,  1904), 
p.  14. 


THE  AMERICAN   CITY  575 

action.  Men  who  are  born  and  grow  up  in  large  com- 
munities do  not  realize  the  workings  of  this  psychological 
influence,  but  its  pressure  is  incessant. 

Paradoxical  though  it  may  seem,  the  city  nevertheless  Radicalism 
tends  to  be  radical  in  its  attitude  toward  political  and  ]facli} 

•*•  ItS  CtillSGS. 

economic  issues.  Its  restive  frame  of  mind  does  not  betray, 
however,  the  radicalism  of  independence  but  of  self-interest. 
This  is  because  the  city  is  the  habitat  of  great  propertyless 
elements  and  lacks  the  stabilizing  influence  of  widely 
distributed  private  ownership.  In  Boston  not  one  in 
five  families  own  their  homes ;  in  New  York  not  one  in 
eight.  In  the  rural  districts  of  the  United  States,  on  the 
other  hand,  more  than  half  the  adult  male  population  can 
claim  the  ownership  of  land.  The  great  disparity  in 
income  and  wealth  which  may  be  found  within  the  bounds 
of  the  city  is  also  an  incentive  to  restiveness  on  the  part  of 
the  less  well-to-do.  Class  antagonisms  develop,  therefore, 
more  readily  in  cities  than  in  regions  where  worldly 
possessions  are  more  evenly  distributed,  and  where  each 
man's  earnings  do  not  differ  greatly  from  those  of  his 
neighbor. 

The  presence  of  large  foreign-born  elements  in  American  The  alien 
cities  is  another  factor  which  has  tended  to  promote  political 
docility,  social  unrest,  and  a  readiness  to  depart  from  estab-  cities, 
lished  traditions  in  government  or  law.  In  the  nation  as  a 
whole  only  thirteen  per  cent  of  the  population  is  of  foreign 
birth  ; l  but  in  the  cities  the  ratio  is  much  higher.  Rarely 
is  it  less  than  twenty-five  per  cent  and  it  sometimes  exceeds 
fifty.  Many  of  the  largest  cities  are  veritable  melting-pots 
for  the  assimilation  of  aliens  drawn  from  the  ends  of  the 
earth.  It  is  said  of  New  York  City,  and  doubtless  with 
truth,  that  it  contains  "more  Irishmen  than  Dublin,  more 
Italians  than  Padua,  more  Germans  than  Potsdam,  and 
more  Jews  than  Jerusalem."  The  immigrant  brings  with 
him  no  knowledge  of  American  political  traditions.  His 
eyes  are  on  the  present  and  future,  not  on  the  past.  If  he 
tries  to  enter  into  the  spirit  of  existing  American  institutions, 
he  finds  almost  insuperable  obstacles  in  the  way,  his  lack  of 
education,  his  difficulties  in  mastering  the  new  language, 

1  This  does  not  include,  of  course,  native-born  persons  of  foreign  parentage. 


576      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Why  immi- 
grants 
concen- 
trate in 
urban 
centres. 


the  dearth  of  leisure,  and  the  various  other  forces  which  in- 
evitably cast  him  into  the  company  of  other  immigrants 
like  himself.  All  too  soon  he  learns  to  think  as  they  do, 
to  be  exploited  by  contractors  and  politicians  as  they  are, 
to  shape  his  attitude  upon  political  and  industrial  questions 
in  accordance  with  the  only  sources  of  information  which 
are  open  to  him. 

All  too  soon  after  an  immigrant  passes  the  Statue  of 
Liberty  he  is  likely  to  be  disillusioned.  He  came  to  America 
as  to  a  land  of  promise,  of  political  liberty,  of  social  equality, 
and  of  economic  fraternity.  What  he  usually  finds  is  hard 
labor  at  two  dollars  a  day,  a  two-room  home  in  a  tenement, 
a  foreman  who  bullies  him  at  work,  a  walking-delegate  who 
tells  him  to  strike,  and  a  politician  who  dictates  how  he 
shall  vote.  It  is  hard  for  the  new  arrival  to  discern  the 
principles  of  liberty,  equality,  and  fraternity  in  all  this. 
Thus  disillusioned  and  exploited  the  immigrant  often 
becomes  a  malcontent  and  quite  naturally  becomes  the 
prey  of  demagogues  who  use  him  solely  for  their  own 
advantage. 

Why  do  immigrants  concentrate  in  the  cities,  particularly 
in  the  large  cities  ?  It  is  not  merely  because  they  land  there, 
for  Chicago  and  St.  Louis,  Bridgeport  and  Gary,  Milwaukee 
and  Schenectady,  all  have  large  infusions  of  foreign-born 
although  they  are  not  ports  of  entry.  The  real  reasons  are 
partly  social  and  partly  economic.  The  immigrant  goes 
where  he  can  be  with  others  of  his  own  tongue,  hence 
whenever  a  colony  of  Italians,  Greeks,  Poles,  Lithuanians, 
Armenians,  or  any  other  alien  race  gets  a  foothold  in  any 
American  community,  it  is  sure  to  be  steadily  augmented 
by  new  arrivals.  But  the  economic  magnetism  of  the  city 
is  even  stronger.  The  great  majority  of  o-se  immigrants 
come  to  America  to  work,  and  it  is  in  liie  city  that  jobs, 
particularly  of  the  unskilled  sort,  can  be  most  readily  found. 
The  factories  and  shops  of  the  large  industrial  centres  fur- 
nish an  almost  unlimited  demand  for  alien  labor.  The 
largest  single  industry  in  New  York  City,  for  example,  is  the 
manufacture  of  "ready-to-wear"  clothing,  and  this  industry 
employs  foreign-born  labor  almost  entirely.  Some  immi- 
grants, it  is  true,  go  to  the  agricultural,  mining,  and  lumber 


THE  AMERICAN  CITY  577 

regions  of  the  country ;  but  the  industrial  communities  get 
by  far  the  larger  share.  It  is  upon  the  cities,  accordingly, 
that  the  burden  of  Americanizing  the  alien  has  been  chiefly 
placed,  and  a  heavy  burden  it  is.  At  times  it  has  looked  as 
though  the  outcome  might  be  the  un-Americanizing  of  the 
city  rather  than  the  Americanization  of  these  great  alien 
groups.  At  any  rate  their  presence  has  profoundly  affected 
the  city's  social  structure,  its  attitude  upon  public  questions, 
its  political  ideals,  and  its  part  in-  the  national  life. 

In  many  other  respects  a  city  differs  from  a  rural  unit  other 
of  equal  population.  It  has  a  higher  birth-rate,  a  higher 
death-rate  and  a  far  higher  ratio  in  the  statistics  of  crime. 
It  has  relatively  fewer  illiterates,  strange  to  say,  despite  its 
larger  proportion  of  aliens.  This  is  a  tribute  to  the  far 
more  accessible  educational  advantages  in  the  way  of 
evening  schools,  for  example,  which  the  cities  provide.  The 
people  of  the  city  earn  more  per  capita,  spend  more,  and 
save  more  than  those  of  rural  sections.  They  preserve,  as 
military  statistics  show,  an  equality  with  the  rural  population 
in  point  of  good  physique  and  the  absence  of  serious  bodily 
defects.1  Other  differences  which  cannot  be  statistically 
compared  there  must  be  in  plenty.  They  are  plain  enough 
to  any  observant  eye.  The  city  populations  are  more  vola- 
tile, less  dependent  upon  the  associations  of  home  and 
church,  more  influenced  by  things  of  the  moment  and  less  by 
tradition,  more  ardent  in  their  championship  of  new  doc- 
trines, and  generally  accounted  to  have  more  initiative. 
The  city,  however,  is  a  place  where  extremes  meet.  Wealth 
and  poverty,  culture  and  ignorance,  virtue  and  vice,  are 
there  brought  into  close  proximity.  The  city  of  to-day  is 
responsible  for  most  of  what  is  good,  and  for  most  of  what 
is  bad,  in  our  national  life  and  ideals. 

The  genesis  of  city  government  in  the  United  States  may  Periods  in 
be  found  in  the  chartered  boroughs  of  the  colonial  period.  ^™^a^ 
New  York,  in   1686,  was  the  first  American  community  develop- 
to  receive  a  borough  charter,  but  Albany  became  similarly  ment: 

1  In  the  physical  examinations  of  more  than  three  million  men  between 
the  ages  of  twenty-one  and  thirty-one  in  connection  with  the  raising  of 
the  national  army,  there  was  no  appreciable  difference  in  the  percentages 
of  rejections  on  physical  grounds  between  those  who  came  from  urban  and 
those  who  came  from  rural  areas. 
2p 


578      THE  GOVERNMENT  OF  THE  UNITED  STATES 

i.  The         incorporated  a  few  months  later.     In  due  course  nearly  a 
score  of  other  places  got  their  charters  as  boroughs,  including 


era. 


Philadelphia,  Annapolis,  Norfolk,  Richmond,  and  Trenton. 
All  the  active  chartered  boroughs  were  in  the  southern  and 
middle  colonies.  There  were  none  in  New  England,  where 
the  town  system  of  local  government  met  all  local  needs. 
The  borough  charters  were  in  all  cases  granted  by  the 
colonial  governor,  and  in  a  general  way  they  were  modelled 
upon  those  of  English  municipal  corporations  at  the  time. 
Borough  The  government  of  the  colonial  city  or  borough  was  in 

zafkm"  *ke  hands  of  a  borough  council,  made  up  of  a  mayor,  alder- 
in  the  men,  and  councillors,  all  sitting  together.  In  most  cases 
colonies.  ^e  councinOrs  were  chosen  by  the  people,  and  so  were  the 
aldermen;  but  the  mayor  was  usually  appointed  by  the 
governor  of  the  colony.  There  were  some  other  borough 
officers,  such  as  the  treasurer  and  recorder,  but  the  adminis- 
trative work  of  the  colonial  borough  did  not  amount  to 
much.  Very  little  was  provided  for  the  citizens  in  the  way 
of  municipal  services.  Paved  streets  and  sidewalks  were 
rare ;  there  was  no  public  water  supply  or  sanitation,  no 
public  lighting  to  speak  of,  no  professional  police  or  fire 
protection  service,  and  no  arrangements  for  public  re- 
creation. Poor  relief  to  some  extent,  public  schools  in 
some  boroughs,  the  administration  of  local  justice  and  the 
making  of  some  by-laws  constituted  the  main  functions  of 
borough  government  in  colonial  times. 

2.  From  The  Revolution  made  some  changes  both  in  the  form  and 

dMSo^"  spirit  of  these  municipal  institutions,  a!x1  _0"h  the  general 
to  about  structure  continued  for  the  most  part  unaltered.  Charters 
were  now  granted,  not  by  the  governor,  but  by  the  state 
legislature.  The  disposition  in  colonial  times  had  been 
to  treat  the  boroughs  as  close  corporations  after  the  pre- 
vailing tendency  in  the  mother  country.  After  the  Rev- 
olution this  idea  was  wholly  abandoned ;  the  suffrage  was 
gradually  widened,  and  the  local  officers  were  made  more 
directly  accountable  to  the  whole  body  of  the  citizens.  The 
formation  of  the  new  national  government  also  had  its 
influence  upon  the  cities.  When  new  borough  charters 
were  framed  there  was  a  conscious  imitation  of  the  federal 
system  with  its  arrangement  of  checks  and  balances.  The 


THE  AMERICAN  CITY  579 

borough  council  during  the  early  years  of  the  nineteenth 
century  became  a  double  chamber,  with  its  two  branches 
known  usually  as  the  board  of  aldermen  and  the  common 
council.1  In  New  England  the  prevailing  theory  was  that 
the  alderman  would  perpetuate  the  selectmen  of  the  town 
system,  while  the  common  council  would  be  the  successor 
of  the  town  meeting.  The  practice  of  choosing  the  mayor 
by  popular  vote  also  came  into  existence  and  in  time  sup- 
planted the  method  of  appointment  by  either  the  governor 
or  the  borough  council.  In  general  the  system  of  borough 
government,  or  city  government,  as  it  was  now  more 
commonly  called,  became  a  reproduction  in  miniature  of  the 
national  and  state  organizations.  The  principle  of  division 
of  powers  thus  gained  a  general  acceptance  in  all  three 
fields  of  American  government. 

City  growth  was  slow  during  the  thirty  or  forty  years  Charac- 
next  following  the  winning  of  independence.     New  York,  Jj"^cs 
the  largest  American  city  in   1820,    had   somewhat   more  period, 
than  100,000  people ;  Philadelphia,  the  second,  had  about 
half  that  number ;  and  Boston,  the  third,  was  still  a  town 
of  less  than  forty  thousand.     City  government,  however, 
was  steadily  increasing  the  scope  and  variety  of  its  func- 
tions.    More   attention   was   now  being  given  to  streets, 
sanitation,    lighting,    fire   protection,    education,    and    the 
preservation  of    order.     This    devolved    more  work   upon 
the  city  councils,  which  accordingly  began  the  practice  of 
intrusting  the  direct  supervision  of  the  various  services  to 
its  own  committees. 

From  about  1820  to  the  Civil  War  municipal  growth  went  3.  From 
forward  at  an  increased  pace,  and  with  this  increase  in  size  J 
new  problems  came  to  the  front.     The  system  of  adminis-  War. 
tration  by  committees  of  the  council  proved  quite  unsatis- 
factory in  the  larger  communities,  resulting  in  mismanage- 
ment and  waste.     Hence  arose  the  policy  of  intrusting  the 
management  of  public  works,  water  supply,  and   similar 

1  The  terms  "aldermen"  and  "common  council"  carry  back  to  the 
Anglo-Norman  period  of  English  history.  (Eldor-men  were  Saxon 
officials  before  the  Conqueror  came  to  England;  the  communal  council 
(common  council)  or  council  or  the  commune  was  a  Norman  trans- 
plantation. The  communal  council  remains  the  chief  organ  in  French 
city  government  to-day. 


580      THE  GOVERNMENT  OF  THE  UNITED  STATES 

technical  services  to  boards  of  officials  specially  chosen  for 
the  purpose  and  wholly  independent  of  the  council.  Like- 
wise, as  a  further  check  upon  the  "council's  activities,  the 
mayor  was  in  many  cities  given  the  power  of  veto,  and 
occasionally  was  empowered  to  appoint  the  various  adminis- 
trative boards  and  officials.  In  a  word,  the  council  began 
to  lose  its  hold  upon  administrative  affairs,  and  the  develop- 
ment of  a  strong  municipal  executive  commenced.  This 
shifting  of  power  was  hastened  to  some  extent  by  the  decline 
in  the  quality  of  municipal  councils  which  has  usually  been 
attributed  to  the  influx  of  aliens  during  the  mid-century 
period,  but  which  really  began  before  the  tide  of  immigra- 
tion set  in.  The  spoils  system  of  the  Jacksonian  era,  which 
found  its  way  into  municipal  government,  did  much  to  de- 
moralize the  city  councils  by  placing  patronage  in  the 
hands  of  councillors  and  by  making  party  subservience  the 
prerequisite  of  all  municipal  office-holding.  The  seeds  of 
later  corruption  and  extravagance  were  planted  in  all  the 
larger  municipalities  before  1850. 

The  State  interference  in  municipal  affairs,  as  a  result,  became 

5°8tate         more  fre(luent>   especially   during  the   decade   1850-1860. 
inter-  The  lax  enforcement  of  state  laws  in  the  larger  centres  of 

incity*  population,  the  freedom  with  which  cities  were  spending 
affairs.  and  borrowing  money,  the  inefficiency  and  wastefulness 
which  characterized  the  administration  of  various  depart- 
ments, all  combined  to  encourage  sta  Investigation  of 
local  affairs  and  state  intervention.  Cities  began  to  lose 
what  modicum  of  home  rule  they  had.  State  laws  stepped 
in  to  circumscribe  the  powers  of  city  councils  and  city  offi- 
cials, taking  away  some  of  their  discretion  and  increasing 
their  legal  responsibility.  In  a  few  cases,  where  municipal 
misgovernment  had  seemingly  become  incurable,  the  state 
authorities  took  matters  out  of  the  city's  hands  altogether. 
In  New  York  City,  for  instance,  the  state  took  over  the 
local  police  administration  in  1857  and  did  not  give  it  back 
until  1870.  State  interference  in  municipal  affairs  did  not 
have  its  origin  in  any  theory  of  state  supremacy  but  in  the 
sordid  facts  of  urban  misrule.  The  cities  themselves,  in 
most  cases,  invoked  it  by  their  perversions  of  democracy 
and  their  gross  abuse  of  the  freedom  which  had  been  allowed 


THE  AMERICAN  CITY  581 

them.  But  once  this  habit  of  interventions  began,  it  was  hard 
to  check,  and  in  succeeding  years  it  became  in  its  own  turn 
an  abuse  as  serious  as  that  which  it  originally  set  out  to  cure. 

The  third  period  in  American  municipal  history  extended  4.  From 
from  the  close  of  the  Civil  War  to  the  end  of  the  nineteenth  §1^ 
century.  It  began  rather  inauspiciously  because  the  tide  of  about  1900. 
immigration  which  had  ceased  to  flow  during  the  war  years 
now  set  in  again  with  redoubled  force,  with  the  result  that 
the  cities  grew  more  rapidly  than  ever  before.  Industry  and 
commerce  also  expanded,  and  optimism  was  the  keynote 
everywhere.  As  was  only  natural  under  such  conditions 
the  cities  spent  money  with  a  free  hand,  discounting  the 
future  as  optimists  are  wont  to  do.  Taxes  soared,  debts  ran 
far  into  the  millions  in  all  the  larger  communities.  Much  of 
this  money  was  spent  without  proper  planning,  much  of  it 
went  to  contractors  who  scamped  their  work,  and  in  some 
cities  not  a  little  went  into  the  pockets  of  local  politicians. 
These  were  the  days  of  the  Tweed  Ring  in  New  York, 
the  Gas  Ring  in  Philadelphia,  and  of  less  notorious 
plunder-bunds  in  other  cities.  The  spoils  system,  during  the 
seventies  and  early  eighties,  seemed  to  be  triumphant 
everywhere.  It  flaunted  its  vicious  doctrines  with  all  the 
truculence  of  a  despot,  and  helped  to  make  the  city,  in 
the  words  of  Lord  Bryce,  "the  one  conspicuous  failure  of 
American  government." 

During  these  years  there  were  spasms  of  reform.     One  of  The  failure 
them  ousted  the  Tweed  Ring  in  New  York  and  secured  the  of  reform 

f  r  i       •        ,  i  • ,          T  T  i  movements 

insertion  of  new  safeguards  in  the  city  charter.  In  other  in  this 
cities  these  reform  movements  succeeded  in  transferring  Penod- 
more  power  to  the  mayor  and  in  making  him  somewhat  more 
directly  responsible  for  the  administrative  functions  of 
city  government.  Civil  service  reform,  moreover,  having 
gained  large  recognition  in  national  administration  during 
Grover  Cleveland's  first  term  as  President,  presently  began  to 
make  its  influence  felt  in  the  cities  as  well.  But  in  no  city  of 
the  country  was  there  any  successful  reconstruction  of  the 
entire  system  of  municipal  organization.  It  was  taken  for 
granted  that  the  trouble  did  not  lie  with  the  machinery  of  city 
government  but  with  the  men  who  were  running  it.  Reform 
campaigns,  accordingly,  were  undertaken  chiefly  for  the 


582      THE  GOVERNMENT  OF  THE  UNITED  STATES 

purpose  of  replacing  one  set  of  officials  with  another.  But 
when  they  succeeded  (as  they  did  occasionally),  little  of 
permanent  value  was  achieved.  A  few  new  provisions  went 
into  the  city  charter;  the  tax  rate  was  lowered  a  notch 
or  two  ;  some  spoilsmen  were  shaken  from  their  grip  on  the 
city  payroll,  and  then  the  reform  administration  would  go 
out  of  office  with  profuse  excuses  for  not  having  been  able 
to  accomplish  more. 

5.  The  Municipal  reform  did  not  make  much  genuine  progress  in 

Snced          ^ne  United  States  until  the  opening  years  of  the  twentieth 
1900.  century.     About  that  time  it  entered  a  new  cycle  by  direct- 

ing its  assaults  not  merely  against  incompetent  or  corrupt 
office-holders,  but  against  the  system  which  permitted  and 
even  encouraged  dishonest  men  to  gain  control  of  the  city's 
affairs.  Public  opinion  began  to  realize  that  efficient 
municipal  administration  is  not  merely  a  matter  of  men, 
but  of  laws  and  institutions  as  well.  Beginning  with  the 
Galveston  experiment  of  1901  the  first  two  decades  of  the 
twentieth  century  have  accordingly  witnessed  the  reorgani- 
zation of  American  city  government  on  a  scale  which  would 
have  been  considered  out  of  the  question  a  generation  ago. 
The  doctrine  of  checks  and  balances  has  lV  rnany  cases  been 
swept  away;  the  mechanism  of  city  g<v  jrnment  has  been 
everywhere  simplified  by  the  elimination  of  superfluous 
officials  and  boards ;  the  commission  and  city-manager  plans, 
home-rule  charters,  the  initiative,  referendum,  and  recall, 
the  short  ballot,  stringent  laws  against  corrupt  practices,  the 
direct  primary  and  nomination  by  petition,  the  abolition 
of  party  designations,  —  these  and  many  other  changes 
have  made  the  American  municipal  system  very  different 
from  what  it  was  in  1900. 

The  basis          The  basis  of  city  government,  and  the  medium  through 
govern-        which  any  radical  changes  in  organization  must  be  made, 
ment  —        is  the  city  charter.     This  document,  in  a  way,  is  the  con- 
charter'        stitution  of  the  municipality.     It  provides  what  officials 
a  city  shall  have,  how  they  shall  be  chosen,  what  functions 
they  shall  perform,  and  what  powers  they  may  exercise. 
Methods       City  charters  always  emanate  from  the  state  legislature, 
whicn>  however,  may  be  restricted  by  the  provisions  of  the 
state  constitution  as  to  the  manner  in  which  such  charters 


THE  AMERICAN  CITY  583 

shall  be  granted.  Different  states  pursue  various  methods 
in  this  matter,  but  in  general  there  are  five  principal  methods 
of  framing  and  granting  a  city  charter.  These  may  be 
designated  as  the  general,  classified,  special,  home-rule,  and 
optional  charter  systems. 

The  general  charter  system  was  common  in  several  states  1.  The 
a  quarter  of  a  century  ago,  but  is  now  being  abandoned,  f^art^ 
It  was  the  outcome  of  a  popular  conviction  that  legislatures  system, 
ought  to  treat  all  cities  alike,  giving  no  one  city  a  more 
favorable  charter  than  others.     A  provision  was  frequently 
inserted  in  the  state  constitution,  therefore,  forbidding  the 
legislature  to  charter  cities  by  special  law  or  to  give  to  any 
city  powers  which  are  not  given  to  all.1     The  only  alternative 
in  such  cases  was  for  the  legislature  to  enact  one  general 
charter  or  municipal  code  applying  to  all  the  cities  of  the 
state,  whether  large  or  small. 

The  great  defect  of  the  general  charter  system  is  its  its  defects, 
rigidity.  Not  all  cities  are  alike  in  size,  population,  char- 
acteristics, problems,  or  requirements.  A  seaport  city,  for 
instance,  may  need  a  harbor  board  with  powers  to  regulate 
the  anchoring-places  of  ships  ;  but  to  require  for  the  sake  of 
general  uniformity  that  inland  cities  of  the  state  shall  also 
have  harbor  authorities  and  anchorage  regulations  is  a 
palpable  absurdity.  Under  the  general  charter  plan,  as  it 
formerly  existed  in  Ohio,  for  example,  it  was  found  that  a 
scheme  of  government  which  had  to  be  fitted  to  both  big 
and  little  cities  proved  satisfactory  to  neither. 

Other   states,   realizing  the   undesirability   of   requiring  2.  The 
absolute  uniformity  in  city  charters,  have  provided  in  their  ^rte^ 
constitutions    that    cities    shall    be    grouped    into    classes  plan, 
according   to   their   respective   populations   and   that   the 
legislature  shall  grant  similar  charters  to  all  cities  within 
the  same  class.     This  allows  more  leeway,  while  at  the  same 
time  preventing  any  discrimination  in  favor  of,  or  against, 
a  particular  city.     Grouping  cities  according  to  their  popu- 
lation, however,  is  at  best  a  purely  artificial  method  of 
classification,  for  municipalities  which  stand  close  together 
in  the  census  figures  may  be  wholly  unlike  in  the  texture 

1  See  the  bulletin  on  Municipal  Home  Rule  prepared  for  the  Massa- 
chusetts Constitutional  Convention  (Boston,  1917),  p.  7. 


584      THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  their  populations,  in  their  resources,  their  problems,  and 
their  administrative  requirements.  As  cities  grow,  more- 
over, they  pass  from  one  class  to  another,  thus  coming  under 
a  new  charter  regime  whether  they  desire  to  change  the 
existing  system  or  not. 

3.  Special         Many  states,  again,  have  continued  the  original  method 
charter         o£  granting  city  charters,  commonly  known  as  the  special 

charter  system.  .  Under  this  plan  each  city  is  dealt  with  as  a 
separate  problem  and  each  gets  whatever  form  of  charter 
the  legislature  chooses  to  give  it.  All  may  get  the  same 
charter,  or  each  may  get  a  different  one,  the  latter  being 
the  usual  course.  On  its  face,  this  system  has  much  in  its 
its  merits  f avor.  It  has  the  virtue  of  adaptability,  enabling  the  legis- 
and  defects.  ia^ure  to  frame  each  city's  charter  with  an  eye  single  to 
that  city's  needs,  giving  it  such  officials  as  may  be  required 
and  such  powers  as  seem  necessary.  But  in  practice  it  has 
merely  thrown  the  door  wide  open  to  partisan  discrimina- 
tion and  to  factious  interference  in  matters  of  purely  local 
concern.  To  help  the  dominant  political  party,  or  to  serve 
some  other  selfish  interest,  legislatures  have  frequently 
altered  city  charters  against  the  will  of  the  citizens,  treating 
these  documents  as  though  they  were  entitled  to  no  more 
permanence  or  security  than  any  ordinary  law.  Where 
there  is  no  barrier  to  the  passing  of  special  charter  laws,  the 
legislatures  of  some  states  have  not  hesitated  to  interfere 
with  the  conduct  of  routine  business  in  cities,  raising  the 
salaries  of  favored  officials,  reinstating  dismissed  municipal 
officers,  altering  the  boundaries  of  wards,  awarding  holidays 
to  municipal  employees,  and  so  on,  all  such  actions  being 
dictated  by  purely  political  motives.  The  special  charter 
system  has  thus  been  grossly  abused,  so  much  so  that  the 
demand  for  municipal  home-rule  has  become  insistent  over 
large  sections  of  the  country. 

4.  The  The  home-rule  charter  system  was  devised,  accordingly, 

to  Pro'tec^  cities  against  the  over-activity  of  meddlesome 
legislatures.  It  has  gained  in  popularity  during  the  last 
couple  of  decades  and  is  now  established  in  twelve  states 
of  the  Union.1  As  its  name  implies,  it  is  a  plan  whereby 

1  These  states  are  Missouri,  California,  Washington,  Minnesota,  Colo- 
rado, Oregon,  Oklahoma,  Michigan,  Arizona,  Nebraska,  Ohio,  and  Texas. 


THE  AMERICAN  CITY  585 

cities  make  their  own  charters  just  as  states  make  their  own 
constitutions.  In  this  connection  it  should  be  made  clear, 
however,  that  cities  which  do  not  see  fit  to  frame  their  own 
charters  remain  under  the  provisions  of  the  general  or  special 
laws  as  before. 

The  methods  of  framing  home-rule  charters  differ  some-  Methods 
what  in  the  various  states,  but  in  all  of  them  except  Oregon 
the  drafting  of  the  document  is  intrusted  to  a  body  of 
citizens  commonly  known  as  a  board  of  freeholders  or  charter 
commission.1  The  members  of  this  board  are  in  all  cases 
elected,  except  in  Minnesota,  where  they  are  appointed 
by  the  district  court.  When  the  board  has  completed  its 
work,  the  charter  is  submitted  to  the  people  of  the  city  and 
if  it  is  approved  by  them  at  the  polls,  it  goes  into  effect 
without  further  approval  in  most  of  the  states.2 

In  actual  practice,  however,  the  home-rule  system  does  Limitations 
not  give  as  much  local  freedom  as  this  brief  description  of  it  °f  the    , 

.    ,        .  ,      rm          •    •  i  •  1      •  home-rule 

might  indicate.  Ihe  cities,  in  making  their  own  charters,  system. 
are  allowed  entire  liberty,  to  be  sure,  in  matters  of  purely 
local  concern.  But  what  are  matters  of  strictly  local  con- 
cern? The  line  of  demarcation  between  matters  of  local 
interest  on  the  one  hand  and  of  state  interest  on  the  other 
is  not  firmly  fixed ;  but  the  sphere  of  the  state  is  ever 
widening,  and  it  already  includes  a  host  of  things  such  as 
assessment,  taxation,  elections,  police,  licenses,  education, 
public  health,  poor-relief,  which  on  their  face  might  be 
deemed  to  be  matters  of  municipal  jurisdiction.  The  pro- 
visions of  home-rule  charters  must  keep  within  the  bounds 
of  the  general  state  laws  on  these  and  many  other  matters. 
Municipal  home-rule  does  not  mean,  therefore,  that  each  city 
can  set  up  a  little  rock-ribbed  republic,  but  merely  that  it 
may  choose  for  itself  the  general  outlines  of  its  own  govern- 
ment and  that  it  shall  be  free  from  state  interference  within 

1  In  Oregon  a  charter  may  be  drafted  by  any  body  of  citizens  and 
submitted  to  the  people  by  an  initiative  petition. 

2  In  Arizona  and  Oklahoma,  however,  it  goes  first  to  the  governor,  who 
may  withhold  his  signature  if  he  finds  the  charter  in  conflict  with  the 
state  constitution  or  laws.     In  California  it  goes  to  the  legislature,  which 
may  accept  or  reject,  but  may  not  alter  it. 

.s  For  an  exhaustive  discussion   of  the  subject,   see  H.   L.   McBain, 
The  Law  and  the  Practice  of  Municipal  Home  Rule  (N.  Y.,  1916). 


586      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Its  merits. 


that  rather  limited  realm  which  is  usually  designated  as  the 
field  of  "strictly  municipal  affairs." 

But  notwithstanding  these  limitations  the  home-rule 
charter  system  has  some  tangible  advantages.  It  relieves 
the  legislature  from  having  to  do  with  a  multitude  of  local 
matters  at  every  session,  thus  affording  more  opportunity 
for  the  due  consideration  of  state-wide  problems.  Under 
the  special  charter  system  it  has  been  found  that  municipal 
affairs  frequently  consume  from  one-fourth  to  one-third 
of  a  legislature's  time.  The  home-rule  system  helps  to 
divorce  state  from  municipal  politics,  and  it  has  also  proved 
an  agency  of  political  education,  encouraging  the  voters  of 
the  city  to  take  an  active  interest  in  the  form  and  functions 
of  their  local  government.  But  its  greatest  advantage 
lies  in  the  fact  that  under  the  home-rule  plan  a  city  gets 
whatever  sort  of  charter  its  people  desire,  provided,  of 
course,  that  their  desires  do  not  run  counter  to  the  general 
interest  of  the  state  as  a  whole. 

The  fifth  method  of  granting  city  charters  is  known  as  the 
alternative  or  optional  charter  system.  It  is  a  compromise 
between  the  general  charter  plan  at  the  one  extreme,  and 
municipal  home-rule  at  the  other.  Under  this  arrangement 
the  state  legislature  provides  several  standard  charters, 
any  one  of  which  a  city  may  adopt  by  popular  vote.  The 
New  York,  optional  charter  law  passed  by  the  New  York  legislature  in 
1913  provided  seven  different  forms  of  local  government 
and  allowed  any  city  of  the  state  except  the  three  largest 
(New  York,  Buffalo,  and  Rochester)  to  choose  whichever  one 
of  these  plans  it  might  desire.  The  Massachusetts  optional 
charter  law  of  1915  provides  four  options,  namely,  city 
government  by  a  mayor  and  small  council,  by  a  mayor  and 
a  large  council,  by  a  commission,  and  by  a  city  manager. 
Optional  charter  laws  have  also  been  enacted  in  North 
Carolina,  Virginia,  and  some  other  states.  The  merit  of 
this  plan  is  that  it  gives  flexibility  to  the  charter  system, 
allowing  each  city  a  reasonable  range  of  choice,  without 
opening  the  door  to  such  rash  experiments  as  the  home- 
rule  plan  has  sometimes  encouraged.  These  optional 
charters  are  fitted  to  the  general  state  laws  so  that  there 
can  be  no  conflict.  The  system,  on  the  whole,  seems  to  have 


5.   The 
optional 
charter 
system. 


Massa- 
chusetts. 


THE  AMERICAN  CITY  587 

the  largest  number  of  real  advantages  without   counter- 
vailing drawbacks. 

City  charters,  like  state  constitutions,  are  becoming 
more  prolix  and  unwieldy  as  time  goes  on.  The  earliest  ex- 
tant charter  of  London,  granted  by  William  the  Conqueror 
in  1066,  contains  about  sixty  words.  The  present  charter 
of  New  York  City  makes  up  a  volume  of  nearly  one  thou- 
sand closely  printed  pages.  All  manner  of  minor  details  are 
being  provided  for  in  charters,  -when  they  should  properly 
be  left  to  be  dealt  with  by  ordinances  of  the  city  council. 
American  city  charters,  on  the  whole,  have  been  poorly 
drawn,  and  they  have  consequently  been  the  basis  of  much 
litigation. 


CHAPTER  XLI 


Types  of 
municipal 
organi- 
zation in 
the  United 
States : 

1.    The 

mayor- 

and- 

council 

plan. 


2.    The 

commission 

plan. 


3.    The 
city- 
manager 
plan. 


MUNICIPAL  ORGANIZATION 

THE  type  of  city  government  which  developed  in  the 
United  States  during  the  nineteenth  century  and  which  still 
prevails  as  the  most  common  form  is  the  mayor-and-council 
plan.  Under  this  scheme  of  local  government  the  corporate 
powers  and  functions  of  the  municipality  are  divided  among 
a  mayor,  a  number  of  administrative  boards  or  officials,  and 
a  city  council.  In  other  words,  this  plan  follows  in  its 
general  outlines  the  frame  of  federal  and  state  government. 
Until  after  1900  the  mayor-and-council  plan  was  virtually 
the  only  type  of  municipal  government  existing  in  any  part 
of  the  United  States. 

But  in  1901  a  C9mmission  system  of  city  government  was 
established  in  Galveston,  Texas,  and  since  that  date  this 
arrangement  has  found  adoption  in  many  municipalities. 
The  essential  feature  of  the  commission  type,  as  will  be  more 
fully  explained  in  another  chapter,  is  the  vesting  of  all  the 
corporate  powers  and  functions  of  the  city  in  the  hands  of  a 
commission  made  up  of  five  persons  elected  by  the  voters. 
This  body  combines  within  its  jurisdiction  both  legislative 
and  administrative  authority,  thus  discarding  the  doctrine 
of  formal  checks  and  balances. 

Finally,  during  the  past  half-dozen  years  the  city-manager 
plan  of  municipal  government  has  come  into  existence.  It 
may  be  denned  as  a  scheme  by  which  all  such  corporate 
powers  and  functions  of  the  municipality  as  have  to  do  with 
the  determination  of  policy  and  the  general  direction  of  local 
Affairs  are  intrusted  to  a  small  council  or  commission  elected 
by  the  voters  at  large,  while  the  strictly  administrative 
functions  of  municipal  government  are  placed  in  the  hands 
of  a  professional,  well-paid  officer,  known  as  the  city- 
manager,  who  is  chosen  by  the  council  for  his  proficiency 

588 


MUNICIPAL  ORGANIZATION  589 

as  an  administrator.  The  fundamental  principle  of  this 
plan  is  a  separation  of  legislative  from  administrative  func- 
tions, but  without  any  division  of  ultimate  power  or  respon- 
sibility. 

The  first  of  these  three  plans,  the  mayor-and-council,  or  Prevalence 
federal  executive  type,  is  to  be  found  in  all  the  largest  cities  ^J. 
of  the  country,  that  is  to  say  in  all  those  which  have  popu-  and- 
lations    exceeding    500,000.     It    prevails    likewise    in    all 
American  cities  of  over  200,000  with  about  a  half-dozen  ex- 
ceptions.    Taking  the  fifty  most  important  municipalities 
of  the  United  States,  the  mayor-and-council  organization 
is  retained  in  all  but  twelve.     Despite  the  spread  of  the  other 
plans,  therefore,  it  must  still  be  regarded  as  the  prevailing 
type  of  municipal  government.     Its  mechanism  includes,  as 
has  been  said,  a  mayor,  a  staff  of  administrative  boards  or 
officials  or  both,  and  a  city  council  of  either  one  or  two 
chambers.1 

The  mayor  is  everywhere  chosen  by  direct  popular  vote.  The 
Nominations,  as  a  rule,  are  made  at  a  primary,  and  the  mayor- 
election  is  by  secret  ballot,  usually  with  party  designations 
thereon.  To  be  eligible  for  election  a  candidate  must  in  all 
cases  be  a  qualified  voter,  and  in  some  cases  additional 
residence  requirements  are  imposed.  It  is  not  necessary 
that  a  candidate  for  the  mayoralty  shall  have  previously 
held  any  other  office  or  have  had  any  experience  in  munici- 
pal government,  but  in  practice  the  candidates  are  almost 
invariably  men  who  have  been  prominent  in  national,  state 
or  local  politics.  The  mayor's  term  is  either  two  or  four 
years  in  most  cities,  the  former  being  customary  in  nearly 
all  but  the  largest  ones.  Usually  a  mayor  may  be  chosen 
for  a  second  term ;  but  in  a  few  cities,  including  Philadelphia 
and  Boston,  this  is  not  permitted.  The  office  carries  a 
salary  which  varies  from  one  thousand  dollars  in  some  of 
the  smallest  cities  to  fifteen  thousand  in  New  York. 

The  authority  of  the  mayor  usually  includes  the  right  to  His 
advise  the  city  council  by  message  or  communication,  to  powers- 

1  For  a  further  discussion  of  the  various  matters  dealt  with  in  the 
following  pages  of  this  chapter,  the  reader  may  be  referred  to  the  author's 
volume  on  The  Government  of,  American  Cities  (2d  ed.,  N.  Y.,  1916), 
and  to  the  references  there  indicated. 


590      THE  GOVERNMENT  OF  THE  UNITED  STATES     - 

veto  ordinances,  to  appoint  most  of  the  higher  city  officials, 
to  exercise  various  powers  in  relation  to  municipal  finance, 
and  to  perform  some  miscellaneous  functions. 

(a)  advis-          According  to  the  abstractions  of  the  mayor-and-council 
ory'  type  of  municipal  government  the  mayor  has  no  active  share 

in  legislation,  that  is,  in  the  making  of  city  ordinances.  Legis- 
lation is  assumed  to  be  the  function  of  the  city  council.  But 
the  mayor,  as  a  rule,  is  empowered  to  recommend  legislative 
action  on  the  part  of  the  council  and  also  to  veto  any  ordi- 
nance which  may  meet  with  his  disapproval,  so  that  his 
actual  influence  over  the  course  of  municipal  legislation  is 
often  considerable.  Recommendations  to  the  city  council 
are  sent  by  messages  or  written  communications  which  are 
read  by  the  council's  clerk  and  then  referred  to  the  appro- 
priate committees.  Whether  they  will  be  adopted  depends 
to  a  large  extent  upon  the  political  relations  which  exist 
between  the  two  departments  of  the  city's  government. 
The  mayor  is  usually  a  local  party  leader,  and  if  his  party 
controls  a  majority  in  the  city  council,  the  chances  of  favor- 
able action  by  the  latter  are  naturally  much  greater  than 
when  the  political  situation  is  reversed. 

(&)  the  Most  city  charters  provide  that  any  ordinance  or  resolution 

veto.  which  passes  the  city  council  shall  be  sent  to  the  mayor  for 

his  approval.  If  the  mayor  approves  the  measure,  he  signs 
it ;  if  he  does  not  approve  he  may  return  it  unsigned  within 
a  designated  number  of  days,  usually  five,  seven,  or  ten,  with 
a  communication  stating  his  reasons  for  disapproval.  The 
council  may  then  pass  the  ordinance  over  the  mayor's 
disapproval  or  veto  by  a  two-thirds  vote.1  If  it  does  not  do 
so,  the  measure  remains  inoperative.  There  is  also,  in  most 
cases,  a  provision  that  if  the  mayor  neither  signs  nor  returns 
a  proposed  ordinance  within  the  prescribed  time,  it  becomes 
valid  without  his  signature.  The  analogy  between  the  veto 
power  in  federal  and  in  municipal  government  is  thus  plainly 
to  be  recognized. 

The  qualified  veto,  however,  has  not  proved  a  satisfactory 
institution  in  local  government.  Occasionally  it  has  enabled 
a  courageous  mayor  to  check  extravagance  and  to  prevent 

1  In  Baltimore  the  requirement  is  a  three-fourths  vote ;  in  Philadelphia, 
three-fifths ;  and  in  San  Francisco,  seven-ninths. 


MUNICIPAL  ORGANIZATION  591 

the  imprudent  granting  of  franchises ;  but  more  often  it  has  Merits 
been  employed  to  further  a  mayor's  own  political  or  per-  |]£fLts 
sonal  interests  quite  regardless  of  the  general  welfare.     The  of  the 
exercise  of  the  veto  power  has  been  far  more  frequent  in  the  veto* 
cities  than  in  the  nation  or  the  states,  so  much  so  that  it  has 
enabled  the  mayor  in  many  cities  to  become  the  real  dictator 
of  local  policy  without  having  the  full  responsibility  therefor. 
In  its  origin  and  by  its  design  the  veto  was  intended  to  be 
an  emergency  weapon  in  cases  -  where  drastic  interference 
with  the  normal  course  of  legislation  seemed  to  be  clearly 
justified  by  obvious  considerations  of  public  interest.     Its 
employment  on  all  and  sundry  occasions  as  a   means   of 
enforcing  the  personal  wishes  of  the  executive  is  a  per- 
version of  the  veto's  true  place  in  the  American  scheme  of 
government. 

The  higher  officials  of  city  administration,  such  as  the  (c)  ap- 
treasurer,  comptroller,  city  solicitor,  police  commissioner, 
superintendent  of  streets,  likewise  the  members  of  the  various 
boards  and  commissions,  are  in  some  cases  chosen  by  popular 
vote.  In  a  few  instances,  again,  they  are  selected  by  the 
city  council,  but  most  commonly  their  appointment  is  now 
intrusted  to  the  mayor.  The  tendency  to  concentrate  the 
appointing  power  in  the  mayor's  hands  has  been  increasing 
in  recent  years.  In  many  cities,  however,  there  still  exists 
the  requirement  that  appointments  made  by  the  mayor  to 
these  higher  administrative  positions  must  have  the  con- 
currence of  the  city  council  (or  the  upper  branch  of  that 
body)  before  they  become  valid.1  This  requirement  of 
aldermanic  confirmation  is  another  example  of  the  influence 
of  the  federal  analogy  in  local  government  and  forms  part 
of  the  municipal  system  of  checks  and  balances.  Its  advan- 
tages, however,  are  seriously  open  to  question,  for  while  the 
plan  has  at  times  availed  to  prevent  the  making  of  improper 
appointments  it  has  more  often  served  to  divide  the  respon- 
sibility for  inefficiency  in  municipal  office  between  the  mayor 
and  the  council  to  such  an  extent  that  the  people  are  able 
to  hold  neither  of  them  to  account.  It  has  become  a  prolific 
source  of  political  legerdemain  and  imposture.  Some  of 
the  larger  cities,  New  York  for  example,  have  abolished  the 

1  In  Boston  the  approval  of  the  state  civil  service  commission  is  required. 


592      THE  GOVERNMENT  OF  THE  UNITED  STATES 


(d)  re- 
movals. 


(e)  finan- 
cial powers. 


(/)  mis- 
cellaneous. 


system  of  council  confirmation  with  results  which  have 
proved  to  be  distinctly  advantageous. 

The  mayor,  as  a  rule,  may  remove  appointive  city  officials, 
but  his  discretion  here  is  also  in  most  cases  limited.  Some- 
times the  concurrence  of  the  council  is  necessary  in  such 
removals.  Where  the  appointments  have  been  made  under 
civil  service  rules,  moreover,  various  formalities  in  the  way 
of  filing  definite  charges  and  holding  a  public  investigation 
must  usually  be  complied  with  before  an  officer's  removal 
can  be  effected.  Suspensions,  however,  may  usually  be 
made  by  the  mayor  on  his  own  authority. 

Another  group  of  mayoral  powers  relate  to  the  city's 
financial  administration.  These  powers  differ  greatly  in 
extent  from  city  to  city,  but  the  tendency  everywhere  is 
towards  their  enlargement.  In  some  cities  the  mayor  is 
given  the  sole  right  to  initiate  proposals  of  expenditure,  the 
council  being  allowed  to  reduce  any  item  in  the  mayor's  list 
of  estimates  but  not  to  increase  or  to  insert  new  items. 
Boston  affords  a  good  example  of  this  system  whereby  the 
entire  responsibility  for  all  increases  in  municipal  expenditure 
rests  upon  the  mayor  alone.  In  New  York  City  this  respon- 
sibility is  not  imposed  upon  the  mayor  alone,  but  is  devolved 
upon  a  body  known  as  the  Board  of  Estimate  and  Appor- 
tionment, of  which  the  mayor  is  an  influential  member.1 
In  Chicago,  on  the  other  hand,  the  initiative  in  matters  of 
expenditure  continues  to  be  vested  in  the  city  council.  On 
the  whole  it  seems  desirable  that  the  function  of  preparing 
the  city's  annual  budget  should  be  deputed  to  the  mayor, 
thus  locating  the  responsibility  where  it  cannot  be  evaded. 
A  budget  made  by  a  city  council  is  nothing  but  a  means  of 
dividing  the  city's  money  in  accordance  with  the  interplay 
of  ward  politics. 

Some  miscellaneous  powers  usually  pertain  to  the  mayor's 
office.  He  has  the  right  to  investigate  the  work  of  the 
municipal  departments ;  sometimes  his  approval  is  required 
whenever  contracts  for  public  works  are  let ;  and  not  infre- 

1  This  body  is  composed  of  eight  members  in  all,  namely,  the  mayor, 
the  comptroller,  the  president  of  the  board  of  aldermen,  and  the  presidents 
of  the  five  boroughs :  Manhattan,  Brooklyn,  The  Bronx,  Richmond,  and 
Queens.  Sixteen  votes  are  distributed  among  these  eight  members,  the 
mayor  having  three  votes. 


MUNICIPAL  ORGANIZATION  593 

quently  he  has  the  powers  of  a  justice  of  the  peace  or  local 
magistrate.  The  mayor  represents  the  city  on  all  occasions 
of  ceremony  and  ranks  as  the  first  citizen  of  the  community. 
Social  duties,  which  are  of  infinite  variety,  take  a  large  share 
of  his  time  and  energy,  so  much  so  that  personal  attention 
to  the  details  of  his  official  work  has  become  exceedingly 
difficult  in  the  larger  cities. 

In  addition  to.  its  mayor  a  city  which  maintains  the  mayor-  2.  The 
and-council  system  of  government  has  various  officials  and  ci^  s 
boards  in  charge  of  its  administrative  departments,  such  as  depart- 
police,  fire  protection,  highways,  water  supply,  and  public  r 
health.     Originally  the  management  of  these  departments 
was  in  charge  of  the  city  council's  committees  (as  it  is  in 
English  cities  at  the  present  day) ;  but  during  the  nineteenth  Evolution 
century  American  municipalities  broke  away  from  this  plan 
and  committed  the  work  of  departmental  administration  to 
separate  boards   or  individual  officials.     For   a  time  the 
board  system  was  the  more  popular,  partly  because  of  local 
prejudice  against  giving  too  much  power  to  any  one  official, 
and  partly  because  a  board  of  three  or  five  members  gave  an 
opportunity  for  having  both  political  parties  represented 
on  it.     But  the  bi-partisan  board  rarely  proved  to  be  an 
efficient  or  smooth-working  body,  and  in  many  cases  it  has 
been   supplanted   by   a   single   commissioner.     The   board 
system   has   some   distinct   merits   when   applied   to   such 
departments  as  poor  relief,  schools,  city  planning,  or  public 
libraries  where  deliberation  and  discussion  are  desirable. 
But  in  its   application  to   some  other   city  departments, 
police,  fire  protection,  and  health,  where  quickness  of  decision 
and  firmness  in  action  are  essential,  the  board  system  is  un- 
suitable and  has  given  way  in  many  cities  to  the  plan  of 
administration  by  a  single  head. 

The  officials  in  charge  of  the  various  city  departments,  HOW 
whether  members  of  boards  or  individual  commissioners,  ^?natrt~ 
are  either  elected  by  the  people,  chosen  by  the  city  council,  heads  are 
or  appointed  by  the  mayor.     Popular  election  was  at  one  chosen- 
time  the  customary  method,  but  it  is  now  used  in  a  few  cases 
only.     The  council  still  chooses  some  of  the  higher  officials 
in  most  cities,  particularly  the  city  clerk.     But  appointment 
by  the  mayor  has  become  the  prevailing  plan.     The  merit 
2Q 


594      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Should 

civil 

service 

rules  be 

extended 

to  the 

highest 

municipal 

offices? 


State 
inter- 
vention 
in  city 
adminis- 
tration. 


system  applies  only  to  subordinate  officials ;  in  no  American 
city  are  the  heads  of  departments  chosen  by  civil  service 
competition.  The  nearest  approach  to  it  is  in  Boston, 
where  the  mayor's  appointments  to  the  headships  of  depart- 
ments require  the  formal  approval  of  the  state  civil  service 
authorities  as  to  their  general  qualifications  by  education, 
training,  or  experience. 

The  selection  of  the  higher  as  well  as  the  lower  officials  of 
city  administration  by-  civil  service  competition  has  some- 
times been  proposed,  but  there  are  serious  objections  in  the 
way.  Heads  of  departments  should  not  only  have  famili- 
arity with  the  work  which  is  to  be  placed  in  their  charge,  but 
personal  qualities  such  as  tact,  ability  to  work  with  others, 
and  a  due  deference  to  public  opinion.  Competitive  tests 
may  determine  an  official's  expertness  and  technical  knowl- 
edge, but  they  do  not  and  cannot  put  to  the  proof  the 
possession  of  these  other  qualities.  Experts  in  all  fields  of 
human  endeavor  tend  to  be  dogmatic  and  impersonal,  while 
public  administration  is  an  intensely  practical  and  personal 
matter,  whether  it  be  in  the  field  of  police,  public  health, 
education,  poor  relief,  or  recreation.  No  administrator  who 
hopes  to  be  successful  can  nonchalantly  brush  human  nature 
aside  and  deal  only  with  the  cold  canons  of  technique  and 
efficiency.  A  disregard  of  that  simple  principle,  which  is  as 
old  as  democracy  itself,  has  brought  many  a  municipal 
expert  to  grief.  Work  that  is  technical  in  its  nature, 
whether  in  public  or  in  private  administration,  should  be 
put  into  the  hands  of  trained  men ;  but  the  determination  of 
public  policy  must  reckon  not  only  with  professional  theories, 
but  with  the  pragmatism  of  the  public  mind.  The  science 
of  municipal  government  is  in  large  part  the  science  of 
managing  cantankerous  men  and  women.  For  of  such  is 
the  kingdom  of  democracy. 

Occasionally  the  state  has  intervened  and  taken  into  its 
own  hands  the  appointment  of  certain  higher  officials  in  the 
larger  cities.  In  Boston,  Baltimore,  and  St.  Louis,  for 
example,  the  municipal  police  is  in  charge  of  state-appointed 
officials.  There  is  always  a  strong  local  prejudice  against 
this  policy,  however,  and  it  is  rigidly  forbidden  by  the 
constitutions  of  a  good  many  states.  State  appointment 


MUNICIPAL  ORGANIZATION  595 

of  municipal  officials  is  more  defensible  in  the  case  of  the 
police  department  than  any  other,  for  inefficiency  and 
corruption  there  results  in  the  non-enforcement  or  dis- 
criminatory enforcement  of  the  state  laws.  Such  inter- 
ference with  municipal  home  rule  is,  in  most  cases,  however, 
of  doubtful  expediency. 

The  other  important  branch  of  the  municipal  organization  3.  The 
is  the  city  council.  Originally  it  was  the  chief  and  in  fact 
the  only  governing  organ  of  the  city,  but  it  has  parted  with 
many  of  its  earlier  functions  and  is  now  in  most  cities  the 
less  important  branch  of  local  government.  The  council 
may  consist  of  one  or  two  chambers.  In  the  latter  case  the  its 
upper  chamber  is  usually  known  as  the  board  of  aldermen 
and  the  lower  chamber  is  called  the  common  council.  The 
members  of  both  are  elected,  ordinarily  for  terms  of  from 
one  to  four  years,  and  either  by  wards  or  by  the  voters  at 
large  or  by  some  combination  of  these  two  plans.  Nomi- 
nations are  usually  made  by  means  of  a  primary.  In  a  few 
cities  there  are  no  formal  nominations  and  the  election  takes 
place  by  means  of  a  preferential  ballot. 

Much  has  been  said  and  written  about  the  relative  merits  The 
of  the  single  and  double  chamber  system  in  the  organization  ^|l 
of  municipal  councils.  The  bicameral  plan  has  been  de-  double 
fended  as  affording  a  protection  against  hasty  and  unwise 
action,  against  subservience  to  any  sinister  interest,  and 
against  the  complete  control  of  the  city's  legislative  ma- 
chinery by  one  political  party.  On  the  other  hand  it  is 
contended  that  the  single-chamber  plan  enables  the  city  to 
get  better  councilmen,  and  that  it  permits  business  to  be 
done  more  promptly,  with  far  less ,  opportunity  for  wire- 
pulling. With  the  greatly  curtailed  powers  of  the  council 
there  is  no  longer  any  need  for  such  an  elaborate  checking 
apparatus  as  the  bicameral  system  provides.  At  any  rate 
the  double  chamber  is  rapidly  becoming  obsolete  in  city 
government.  One  city  after  another  has  abandoned  it,  so 
that  at  the  present  day  it  is  the  exception  rather  than  the 
rule. 

The  relative  merits  of  the  ward  and  at-large  methods  of 
electing  councillors  have  also  been  the  theme  of  much 
controversy.  The  ward  system  is  the  older  plan  and  at  one 


596      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Ward  and 
general 
ticket 
systems 
of  election. 


Functions 
of  the 
city 
council, 
(a)  the 
enacting 
of  ordi- 
nances. 


time  was  practically  universal.  But  it  was  regarded  as 
responsible  for  the  mediocre  quality  of  the  men  chosen  to 
city  councils,  especially  in  the  large  municipalities,  and  for 
the  zeal  with  which  every  councillor  sought  to  obtain  favors 
for  his  own  district  without  any  allegiance  to  the  interests 
of  the  city  as  a  whole.  The  ward  system  has  accordingly 
been  supplanted  in  many  cities  by  the  plan  of  election  at 
large.  The  practical  difficulty  with  this  latter  method, 
however,  is  that  some  districts  of  the  city  are  likely  to  be 
left  unrepresented  altogether.  Moreover,  if  elections  are 
conducted  on  a  party  basis,  as  is  almost  invariably  the 
case,  the  majority  party  will  elect  its  entire  slate  of  candi- 
dates, leaving  the  minority  with  no  councilmen  at  all.  To 
overcome  these  practical  objections  some  cities  have 
adopted  a  combination  of  the  two  plans,  electing  one 
councillor  from  each  ward  and  also  a  designated  number  at 
large.  If  a  city  has  nine  wards  and  a  council  of  fifteen 
members,  for  example,  each  voter  marks  his  ballot  for  seven 
members,  one  to  represent  his  own  ward  and  six  to  be 
chosen  at  large.  This  plan  assures  some  geographical 
representation  and  some  measure  of  minority  representa- 
tion as  well. 

City  councils  hold  regular  meetings,  usually  once  a  week, 
and  are  usually  empowered  to  select  their  own  presiding 
officer.  They  also  make  their  own  rules  of  procedure,  which 
are  similar  to  those  used  in  state  legislatures,  although  much 
less  elaborate.  Most  of  a  city  council's  work  is  done  by 
committees  whose  members  are  appointed  by  the  presiding 
officer.  These  committees  examine  into  the  various  matters 
which  come  before  the  council  and  make  recommendations, 
which  may  or  may  not  be  accepted. 

Chief  among  the  functions  of  a  city  council  is  that  of 
making  ordinances  or  local  laws.  These  ordinances  relate 
to  a  wide  variety  of  matters,  the  protection  of  life  and 
property,  traffic  in  the  streets,  sanitation,  health,  housing, 
weights  and  measures,  bill-boards,  places  of  amusement, 
and  so  on.  They  must  not,  however,  be  inconsistent  with 
the  provisions  of  the  city  charter  or  any  other  state  law. 
Ordinances  must  be  enacted  with  due  regard  for  the  pre- 
scribed formalities  and  must  in  most  cases  receive  the 


MUNICIPAL  ORGANIZATION  597 

approval  of  the  mayor  before  going  into  effect.  But  once 
properly  enacted  they  have  the  force  of  law  and  are  enforce- 
able by  the  regular  courts. 

Municipal  ordinances  must  fulfil  certain  conditions,  Legal 
however,  or  the  courts  will  hold  them  invalid.  For  one 
thing  they  must  be  reasonable  and  not  oppressive  in  char-  ordinance 
acter.  There  is,  of  course,  no  general  test  of  reasonability,  P°wer- 
but  the  courts  have  now  set  up  a  sufficient  number  of 
precedents  to  serve  as  a  guided  Ordinances,  again,  must 
not  be  discriminatory  in  their  application.  They  must  not 
single  out  individuals  or  groups  of  persons  for  special 
restriction  while  permitting  others  of  the  same  sort  to  be 
immune.  Finally,  municipal  ordinances  must  not  unduly 
restrain  freedom  of  trade,  freedom  of  contract,  or  the  other 
established  rights  of  the  citizen.  Considerations  of  public 
safety,  health,  and  morals  are  paramount,  however,  and  the 
freedom  of  the  individual  may  always  be  restrained  where 
these  considerations  require  it ;  but  factious  or  undue  re- 
straint will  not  be  tolerated.  On  the  whole,  however,  the 
courts  have  been  lenient  in  these  matters,  giving  the  ordi- 
nance the  benefit  of  any  doubt,  where  doubt  exists. 

City  councils  also  possess  various  powers  in  relation  to  (&)  financial 
local  finance.  No  taxes  can  be  levied,  no  appropriations  authonty- 
made,  and  no  money  borrowed  except  with  the  council's 
approval.  It  is  true  that  the  nature  of  the  taxes  is  deter- 
mined by  the  state  laws,  but  the  city  council  by  ordinance 
fixes  the  rate.  The  list  of  appropriations,  too,  is  often 
prepared  by  the  mayor  or  by  a  board  of  estimate,  but  no 
appropriation  becomes  effective  until  the  city  council  has 
given  its  approval.  And  in  the  matter  of  municipal  borrow- 
ing the  council  determines  the  amount,  the  term  of  the  loan, 
and  the  rate  of  interest  to  be  paid.  The  hands  of  the  council 
are  often  tied,  however,  by  the  facts  of  the  situation.  In 
appropriations,  for  example,  there  are  many  items  over 
which  the  council  has  no  real  discretion.  Interest  on  the 
municipal  debt,  expenditures  which  are  made  compulsory 
by  state  law,  the  cost  of  maintaining  city  property  —  these  Limitationa 
must  be  provided  for  in  any  case.  So,  too,  the  expense  of  as  to 

maintaining  the  schools,  the  police  and  fire  departments,  and  taxatlon 

,  iii  - 

the  sanitary  system  cannot  be  reduced   below  a   certain 


598      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Limitations 
upon  the 
borrowing 
power. 


(c)  powers 
in  relation 
to  fran- 
chise. 


(d)  mis- 
cellaneous 
powers. 


point.  The  discretionary  power  of  the  council  with  respect 
to  expenditures  is  not  nearly  so  large,  therefore,  as  is  com- 
monly imagined.  The  same  is  true  of  the  tax-rate,  which 
is  nothing  but  the  quotient  obtained  by  dividing  the  pro- 
posed net  expenditure  into  the  total  assessed  valuation  of 
taxable  property.  City  councils,  by  a  rigid  paring  of 
appropriations,  can  reduce  the  tax-rate  a  trifle,  but  rarely 
can  any  considerable  reduction  be  made  without  crippling 
the  administrative  departments. 

Most  cities,  again,  are  not  permitted  to  borrow  beyond  a 
certain  point.  They  are  subject  to  debt  limits  fixed  by  the 
state  constitution  or  by  state  law.  These  limits  are  usually  set 
by  designating  a  certain  percentage  of  the  assessed  valuation 
as  the  maximum  of  municipal  indebtedness.  In  New  York, 
for  example,  a  city  may  incur  indebtedness  up  to  ten  per 
cent  of  the  assessed  value  of  the  real  estate  within  its  borders, 
but  no  more.  Unless  municipal  financing  is  carefully  done 
a  city  soon  reaches  its  debt  limit,  and  thereafter  can  borrow 
no  more  unless  there  are  increases  in  the  assessed  valuation. 

In  most  cities  the  council  retains  the  power  to  grant 
franchises  or  privileges  to  public  service  corporations  such 
as  lighting,  telephone,  and  street  railway  companies.  In 
former  times  it  had  complete  authority  over  such  matters, 
but  grossly  abused  its  trust.  Franchises  of  great  value  were 
given  for  long  periods,  and  sometimes  in  perpetuity,  without 
securing  the  city  any  compensation.  Bribery  and  the  crack 
of  the  party  whip  rather  than  business  sense  and  honesty  too 
often  determined  whether  a  company's  gas  mains  or  car 
tracks  should  have  the  free  use  of  a  city's  streets  forever. 
The  states  accordingly  have  stepped  in  and  by  their  laws 
now  restrict  the  council's  discretion,  providing  as  a  rule  that 
no  franchise  may  be  granted  for  more  than  a  certain  term 
of  years  and  that  companies  which  receive  such  privileges 
shall  be  subject  to  public  regulation. 

Finally,  a  city  council  possesses  some  powers  of  a  mis- 
cellaneous nature  which  cannot  be  readily  classified.  They 
include  such  matters  as  authorizing  the  purchase  of  land  for 
public  buildings,  deciding  the  location  and  naming  of  new 
streets,  the  approval  of  certain  important  contracts,  the 
fixing  of  water  rates,  and  the  acceptance  or  rejection  of  per- 


MUNICIPAL  ORGANIZATION  599 

missive  state  legislation,  in  other  words,  of  laws  which  are 
passed  by  the  legislature  with  a  provision  that  they  will  go 
into  effect  in  any  city  whenever  the  city  council  accepts  them. 

This  brief  survey  of  the  council's  powers  may  indicate  that  Place  of 
they  are  of  considerable  scope,  but  they  are  not  nearly  so  *^®^ 
important  as  they  used  to  be.  The  principle  of  division  of  in  Amer- 
powers,  as  applied  to  city  government,  has  resulted  in  trans- 
f erring  the  major  share  of  authority  to  the  mayor  and  to 
the  heads  of  departments.  The  council  remains  the  chief 
legislative  organ  of  the  city ;  but  municipal  government  is 
not  largely  a  matter  of  legislation.  It  is  for  the  most  part 
administration,  a  matter  of  managing  public  services  and 
carrying  on  routine  work.  In  local  government  the  function 
of  making  laws  is  far  outweighed  in  scope,  importance,  and 
influence  by  the  function  of  carrying  them  into  effect.  The 
trend  of  municipal  development  in  the  mayor-and-council 
cities,  therefore,  is  towards  a  subordination  of  the  legislative 
to  the  administrative  branch  of  the  government.  The  same 
trend  has  been  already  noted  in  the  state  affairs,  but  it  is 
much  more  pronounced  in  the  cities.  The  situation  stands 
out  in  sharp  contrast  with  that  existing  in  European  coun- 
tries. There  the  city  council  has  everywhere  retained  its 
position  of  supremacy. 

In  addition  to  the  mayor,  the  heads  of  departments,  and  4.  The 
the  members  of  the  city  council,  the  work  of  municipal 
government  requires  a  large  staff  of  superintendents,  foremen, 
clerks,  and  other  employees.  Cities  everywhere  are  large 
employers  of  both  skilled  and  unskilled  labor.  If  one  adds 
together  all  the  school  teachers,  policemen,  firemen,  library 
officials,  clerks  in  the  city  hall,  street  cleaners,  and  other 
workers,  the  total  is  far  larger  than  the  ordinary  citizen 
realizes.  In  New  York  City  these  employees  make  up  an 
army  nearly  seventy-five  thousand  strong.  The  task  of 
organizing  these  large  corps  of  employees,  recruiting  their 
ranks,  getting  rid  of  the  incompetent,  and  making  the  rest 
give  a  hundred  cents'  worth  of  service  for  a  dollar's  worth  of 
salary  —  that  is  the  most  persistently  difficult  task  which 
mayors  and  city  councils  have  to  perform. 

Three  factors  have  contributed  to  accentuate  the  difficulty 
of  this  problem.     First  and  most  important  is  the  habitual 


600      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Why  they 
have  not 
reached 
a  high 
plane  of 
efficiency. 


Their 
popular 
reputation 
not  wholly 
deserved. 


selection  of  officials  and  employees  on  purely  political  or 
personal  grounds  without  reference  to  individual  competence. 
Wherever  civil  service  regulations  have  not  been  adopted,  the 
spoils  system  flourishes ;  and  even  with  civil  service  rules  on 
the  statute  book  the  spoilsman  often  manages  to  gain  his 
ends.  A  second  factor  is  the  customary  absence  of  any  well- 
defined  system  of  promotion  as  a  reward  for  efficiency. 
Promotions  in  the  municipal  service  have  scarcely  any 
relation  to  individual  merit.  Political  influence  counts  for 
a  great  deal  more  in  the  majority  of  cases.  Employees, 
moreover,  are  regularly  carried  upon  the  list  of  active  workers 
after  they  have  become  too  old  or  too  indolent  to  give  any 
fair  return  for  their  wages.  The  chief  incentive  to  diligence 
is  thus  taken  away.  Finally,  there  is  the  lax  disciplinary 
organization  of  the  various  city  departments  and  the  absence 
of  direct  personal  responsibility  for  the  proper  performance 
of  duty.  Subordinate  officials  who  have  close  friends  among 
political  leaders  often  do  as  they  please,  disregarding  the 
instructions  of  department  heads.  The  slack  discipline  of 
municipal  service  is  proverbial.  Municipal  employees  are 
voters,  of  course,  and  in  a  position  to  exert  strong  pressure 
upon  the  mayor  and  upon  the  members  of  the  city  council. 
That  is  the  fundamental  explanation  of  the  trouble  and  the 
chief  reason  why  the  situation  is  so  difficult  to  remedy. 

Inefficiency  in  the  municipal  service  has  not  been  as  gross 
or  as  widespread,  however,  as  the  literature  of  reform  some- 
times implies.  In  every  city  there  is  a  large  body  of  em- 
ployees who  earnestly  try  to  give  the  public  the  worth  of 
their  wages.  But  the  people  of  the  city  see  or  hear  little  of 
this  class.  The  officials  and  employees  who  give  the  munic- 
ipal service  its  infelicitous  reputation  for  indolence  are  the 
ones  who  can  so  often  be  seen  in  public  places  during  business 
hours.  They  are  a  minority,  no  doubt,  but  their  actions 
stamp  upon  the  public  imagination  its  general  conception 
of  city  employment.  This  public  attitude  in  its  turn  reacts 
unfavorably  upon  all  those  who  are  really  trying  to  do  their 
work  faithfully  and  deprives  the  service  of  that  esprit  de 
corps  which  is  essential  to  the  best  results. 

The  city  is  able  to  tolerate  among  its  employees  a  measure 
of  incompetence  and  carelessness  which  would  be  f£tal  to  pri- 


MUNICIPAL  ORGANIZATION  601 

vate  enterprise  because  it  does  not  have  to  bear  the  strain  of  'Cities 
competition.  The  taxpayers  must  bear  the  cost,  whatever  {£^3° 
it  is.  The  city,  moreover,  is  in  most  cases  noi  liable  in  liable 
damages  for  the  incompetence  or  negligence  of  its  officials  J^JJ 
and  employers,  another  feature  in  which  it  differs  from  the  of  in- 
ordinary  business  corporation.  So  far  as  the  city  is  engaged 
in  the  performance  of  strictly  governmental  functions,  such  employees, 
as  police  and  fire  protection,  the  safeguarding  of  the  public 
health,  and  the  promotion  of  education,  it  is  not  liable  for 
any  injuries  which  may  be  directly  due  to  the  incompetence 
of  its  employees  in  these  departments.  The  citizen  in  such 
cases  has  no  effective  redress.  A  private  corporation,  on  the 
other  hand,  is  ordinarily  liable  for  the  torts  of  its  agents  or 
employees  whenever  any  damage  is  done  by  them  within  the 
scope  of  their  employment,  and  that  fact  affords  an  obvious 
incentive  to  the  maintenance  of  efficiency.  When  a  city  en- 
gages in  any  non-governmental  or  business  enterprise,  such 
as  the  operation  of  a  municipal  lighting  plant  or  a  municipal 
street  railway,  it  assumes  the  same  legal  liabilities  for  the 
acts  of  its  employees  as  are  imposed  upon  private  companies  ; 
but  these  enterprises  form  but  a  small  part  of  a  city's  entire 
administrative  work. 

The  chief  defect  of  the  mayor-and-council  type  of  city  The 
government,  surveying  it  as  a  whole,  has  been  its  emphasis  c^ci 
upon  the  formula  of  checks  and  balances.     This  has  dis-  of  the 
integrated  authority  and  engendered  friction  between  the 
two  branches  of  local  government.     The  endeavor  to  model  system, 
the  political  organization  of  the  city  upon  that  of  the  federal 
government  was  unwise  in  its  day,  and  has  proved  to  be 
unfortunate  in  its  consequences.     It  has  resulted  in  placing 
upon    the   majority    of   American    cities    a    governmental 
mechanism  which  is  adapted  to  the  making  of  laws.     But 
what  the  city  needs  is  a  governmental  mechanism  adapted 
to  the  work  of  doing  business  as  business  is  done  in  the  world 
of  to-day,  awarding  contracts,  buying  supplies,  hiring  labor, 
and  getting  results  without  wasting  money. 


CHAPTER  XLII 


The 

various 
branches 
of  mu- 
nicipal 
adminis- 
tration. 


1.   Public 

safety. 
What  it 
includes : 

(a)  police. 


MUNICIPAL  ADMINISTRATION 

THE  administrative  functions  of  a  modern  city  are  both 
numerous  and  varied,  but  they  may  be  arranged  into  several 
groups  of  activities  which  are  closely  related  in  their  general 
nature.1  The  commission  form  of  government  assumes  that 
five  groups  are  enough  to  include  all  branches  of  municipal 
business,  but  in  the  larger  cities  this  never  proves  to  be  the 
case  unless  unrelated  functions  are  crowded  into  the  same 
group  or  department.  The  extent  and  variety  of  a  city's  ad- 
ministrative activities  depend  in  part  upon  its  size,  and  in 
part,  again,  upon  the  measure  of  real  service  which  it  affords 
to  its  citizens.  No  fixed  rule  can  safely  be  laid  down  in  mat- 
ters of  this  sort. 

Public  safety,  the  safeguarding  of  life  and  property,  is  an 
administrative  function  in  all  organized  communities.  It 
includes  primarily  the  two  rather  closely  associated  depart- 
ments of  police  and  fire  protection.  Modern  police  organ- 
ization began  in  1829  with  the  enactment  of  Sir  Robert 
Peel's  famous  statute  for  reorganizing  the  police  adminis- 
tration of  London.  This  statute  swept  away  the  old  watch 
and  ward  system  of  day-constables  and  night-watchmen, 
replacing  it  with  a  body  of  professional,  uniformed  police 
officers.  The  results  were  so  advantageous  that  other 
English  cities  adopted  the  plan,  and  it  was  eventually 
copied  by  American  municipalities  as  well.  To-day  the 
work  of  policing  is  intrusted  in  all  urban  communities  to 
officers  who  devote  their  entire  time  to  the  service.  The 
system  of  part-time  constables  remains  in  small  towns  and 
rural  areas  only. 

1  This  chapter  is,  in  the  main,  a  very  brief  condensation  of  the  dis- 
cussion contained  in  the  author's  Principles  and  Methods  of  Municipal 
Administration  (N.  Y.,  1916). 

602 


MUNICIPAL  ADMINISTRATION  603 

In  large  American  cities  the  police  force  is  in  charge  of  a  Police 
board  or  a  single  commissioner,  the  latter  being  the  more  controL 
common  plan.1  He  is  usually  appointed  by  the  mayor ; 
but  in  three  large  cities  the  heads  of  the  police  department 
are  appointed  by  the  state  authorities.2  In  those  cities 
which  have  adopted  the  commission  type  of  government 
the  police  and  fire  departments  are  invariably  combined 
under  a  commissioner  of  public  safety,  and  this  plan  is  also 
followed  in  some  cities  which  retain  the  mayor-and-council 
form.  In  smaller  and  medium-sized  communities  this  com- 
bination has  some  important  advantages,  but  in  large  centres 
each  department  is  of  sufficient  importance  to  have  its  own 
head.  The  commissioner  or  superintendent  is  in  immediate 
charge  of  the  entire  force  and  supervises  its  work  from  head- 
quarters. In  the  large  cities  he  is  assisted  by  a  headquarters 
staff,  each  member  of  which  holds  a  high  rank  (such  as  that 
of  deputy  commissioner,  or  superintendent,  or  inspector) 
and  has  jurisdiction  over  some  assigned  branch  of  police 
activity. 

For  purposes  of  police  administration  a  city  is  usually  Police 
divided  into  districts  or  precincts  with  a  police  station  in  org.ani- 

i  rrn  i  T IT  11-  •        ZatlOD. 

each.  Ihe  members  of  the  police  force  are  graded  in  semi- 
military  fashion  into  various  ranks :  captains,  lieutenants, 
sergeants,  patrolmen,  and  sometimes  reservemen.  The  cap- 
tains are  in  charge  of  stations,  the  lieutenants  taking  com- 
mand when  captains  are  absent.  The  sergeants  do  desk- 
work  in  the  stations  or  perform  inspectorial  functions.  The 
patrolmen  perform  the  active  function  of  enforcing  the 
laws  and  maintaining  order.  Various  members  of  the 
force  are  detailed  to  special  duties  as  traffic  officers,  or 
detectives,  or  attendants  at  the  courts.  In  round  figures  * 
there  are  about  twenty  police  officers  for  every  ten  thou- 
sand people  in  all  large  communities. 

Whether  police  administration  will -be  honest,  efficient,  Essentials 
and  humane  depends  in  large  measure  upon  the  patrolmen.  °** 
The  method  of  selecting  these  officers  is  accordingly  a  matter 
of  prime  importance.     Forty  or  fifty  years  ago  it  was  the  zation- 
invariable  custom  to  let  political  and  personal  influence 

1  Sometimes  called  superintendent,  marshal,  or  chief. 
8  St.  Louis,  Boston,  and  Baltimore, 


604      THE  GOVERNMENT  OF  THE  UNITED  STATES 


European 

and 

American 

police 

compared. 


dictate  both  appointments  and  promotions,  but  to-day  in 
a  great  many  cities  the  police  department  has  been  brought 
under  civil  service  rules.  Likewise  it  was  the  practice  to 
set  patrolmen  at  work  without  any  preliminary  training, 
but  the  largest  cities  nowadays  maintain  regular  training 
schools  in  which  the  essentials  of  a  police  officer's  duty 
are  taught.  The  smaller  cities  will  no  doubt  make  some 
similar  provision  in  time. 

European  and  American  police  systems  have  frequently 
been  compared  to  the  disadvantage  of  the  latter.  The 
almost  entire  absence  of  police  scandals  in  English  and  con- 
tinental cities  has  been  contrasted  with  their  all-too-frequent 
recurrence  in  the  cities  of  the  United  States.  It  should  be 
borne  in  mind,  however,  that  the  problem  of  satisfactory 
police  administration  is  a  much  more  complicated  and  diffi- 
cult one  in  America  than  it  is  on  the  other  side  of  the  Atlantic. 
In  European  cities  the  populations  are  homogeneous,  and 
almost  wholly  native-born ;  in  the  majority  of  large  Amer- 
ican municipalities  there  are  great  elements  of  alien  in- 
habitants with  no  uniform  traditions  of  personal  liberty. 
European  police,  moreover,  have  wider  powers  and  are  not 
restricted  to  the  same  extent  by  constitutional  provisions 
relating  to  the  inalienable  rights  of  the  citizen. 

In  the  countries  of  Continental  Europe,  again,  the  police 
officers  are  recruited  from  among  those  who  have  had 
military  service  and  who,  accordingly,  have  served  a  period 
of  probation  under  strict  discipline.  American  cities,  on 
the  other  hand,  select  their  patrolmen  from  any  branch  of 
civil  life  with  no  real  opportunity  to  test  a  man's  amenability 
to  discipline,  or  his  regularity  of  habits  or  his  resourcefulness 
in  emergencies  until  after  he  has  been  appointed.  Finally, 
the  temptations  to  corruption  have  been  much  more  plentiful 
in  American  cities,  particularly  in  thfe  large  ones,  than  they 
are  abroad.  Strict  laws  relating  to  the  liquor  traffic,  gam- 
bling, and  the  social  evil  have  been  enacted  by  state  legis- 
latures and  turned  over  to  the  police  of  the  large  cities  for 
enforcement.  In  many  cases  these  laws  are  more  rigid  than 
the  sentiment  of  the  city  itself  would  dictate.  They  are 
passed  by  legislatures  in  which  representatives  of  the  rural 
districts  predominate.  It  is  obviously  difficult  to  secure 


MUNICIPAL  ADMINISTRATION  605 

the  strict  enforcement  of  laws  which  the  people  of  any  com- 
munity do  not  as  a  whole  support,  and  it  is  in  such  cases 
that  police  organizations  have  most  frequently  succumbed 
to  sinister  influence.  The  situation  once  led  a  well-known 
New  York  attorney  to  suggest  that  the  city  should  have 
two  sets  of  restrictive  laws,  one  made  by  its  own  people  for 
actual  enforcement,  and  the  other  to  embalm  the  moral 
yearnings  of  up-state  prudery.  The  enforcement  of  laws 
relating  to  the  liquor  traffic  and  to  sex  morality  present 
no  serious  problem  in  Europe,  because  not  only  are  the 
rules  more  lenient  but  they  are  made  by  the  cities  for  them- 
selves. 

Looking  at  police  administration  in  its  broader  aspects,  The 
there  are  some  fundamental  differences  between  Anglo-  £? 
American  and  Continental  European  conceptions  of  police  functions 
functions.  The  English  theory  and  its  American  derivative 
look  upon  the  function  of  a  police  department  as  almost 
wholly  repressive  in  its  nature.  The  work  of  police  officers 
is  to  prevent  violations  of  the  criminal  laws.  In  the  coun- 
tries of  Continental  Europe,  on  the  contrary,  the  concept 
of  the  police  function  is  much  broader.  There  the  work  of 
police  officers  includes  many  constructive  activities  such 
as  the  civil  registration  of  the  population,  the  censorship 
of  the  press,  the  granting  of  licenses,  the  inspection  of  build- 
ings during  construction,  the  control  of  societies,  and  many 
similar  phases  of  jurisdiction  which  in  America  either  do 
not  exist  at  all  or  are  intrusted  to  authorities  outside  the 
police  department.  The  work  of  the  European  police 
organizations  thus  affords  greater  scope  for  initiative  and 
makes  a  greater  demand  upon  the  versatility  of  its  personnel. 
An  organization  which  is  altogether  or  even  largely  repressive 
in  its  activities,  such  as  is  the  police  department  of  the 
American  city,  cannot  as  readily  acquire  prestige  or  develop 
a  vigorously  progressive  spirit  in  its  ranks. 

Americans,  like  Englishmen,  have  always  viewed  with  a  The 
resentful  eye  any  proposed  extension  of  police  jurisdiction.  American 

mi  i       i  A      •  i  r    n  ,  •          -,         antipathy 

1  hat,  no  doubt,  is  a  by-product  of  the  general  antipathy  to  the 


to  military  rule,  and  indeed  to  government  by  any  class  of 
professionals.     Hence  when  the  laws  are  passed  to  prevent  duties. 
overcrowding  in  tenements,  or  for  the  protection  of  workers 


606      THE  GOVERNMENT  OF  THE  UNITED  STATES 

in  factories,  or  for  the  inspection  of  food,  or  for  a  score  of 
other  social  welfare  purposes,  their  enforcement  is  not  usually 
committed  to  the  regular  police,  but  to  inspectors  who  are 
appointed  for  each  particular  purpose  and  who  are  attached 
to  the  tenement-house  department  or  the  labor  bureau  or 
the  health  service  as  the  case  may  be.  The  specialized  en- 
forcement of  technical  laws  is  not,  therefore,  made  a  part 
of  the  ordinary  police  jurisdiction.  This  policy,  while  much 
may  be  said  in  its  favor,  has  reacted  rather  disadvantageously 
upon  the  latter  by  confining  the  police  function  in  America, 
as  it  has  not  been  confined  in  Continental  Europe,  to  a  rather 
narrow  range  of  repressive,  non-technical,  and  for  the  most 
part,  unpopular  duties. 

Recent  Nevertheless  the  general  tone  of  police  administration  in 

SentsVe~  American  cities  is  far  better  than  it  was  a  generation  ago. 
This  is  due  in  part  to  better  methods  of  organization,  par- 
ticularly to  the  abolition  of  the  bipartisan  police  board  and 
the  concentration  of  authority  in  a  single  police  commissioner. 
In  larger  measure,  however,  it  has  resulted  from  improved 
methods  of  recruiting  and  training  the  force,  better  pay, 
and  greater  security  of  tenure.  Police  officers  are  no  longer 
in  most  of  the  large  cities  appointed,  promoted,  reduced  in 
rank  or  dismissed  at  the  behest  of  ward  politicians.  Much 
still  remains  to  be  done  before  this  branch  of  municipal 
administration  is  in  all  respects  as  satisfactory  as  it  ought 
to  be,  but  the  progress  of  the  past  twenty  years  gives  ample 
ground  for  optimism. 

Police  The  maintenance  of  law  and  order  in  cities  depends  not 

courts.  onjv  Upon  fae  efficiency  of  the  police,  however,  but  upon  the 
honesty  and  fairness  of  the  local  courts.  The  magistrates 
or  judges  of  these  municipal  courts  are  usually  elected,  and 
too  often  their  attitude  towards  the  strict  enforcement  of 
the  law  is  influenced  by  political  considerations.  It  is  some- 
times argued  that  the  practice  of  electing  these  judges  of 
city  courts  is  advantageous  because  it  secures  men  who  know 
and  understand  the  conditions  under  which  the  people  live 
and  who  can  on  that  account  administer  the  laws  more  justly. 
But  on  the  other  hand  the  elective  system  has  its  manifest 
dangers  in  the  way  of  political  chicanery  and  boss  domina- 
tion. Some  large  cities,  therefore,  have  provided  that  the 


MUNICIPAL  ADMINISTRATION  607 

judges  of  the  municipal  courts  shall  be  appointed  by  the 
mayor.1 

Another  branch  of  public-safety  service  is  the  protection  (6)  fire 
of  life  and  property  against  destruction  by  fire.  This  in-  Protectlon- 
eludes  two  separate  functions,  namely,  fire-prevention  and 
fire-fighting.  Until  recent  years  very  little  attention  was 
bestowed  upon  the  former,  while  so  much  was  given  to  the 
latter  that  American  fire-fighting  organizations  became 
easily  the  best  in  the  world.  The  annual  wastage  by  fire 
loss  in  the  United  States  is  appalling.  In  the  cities  alone 
it  is  over  one  hundred  million  dollars  every  year;  in  the 
rural  districts  it  is  even  larger.  The  chief  reasons,  of  course, 
are  the  high  percentage  of  inflammable  wooden  structures, 
the  laxity  of  the  laws  relating  to  fire  hazards,  and  that  most 
conspicuous  of  American  traits,  the  readiness  to  take  chances. 

The  science  of    fire-prevention,  which  has  made  note-  The 
worthy  progress  in  recent  years,  is  concerned  primarily  with  science 
four  remedial  measures.     First,  there  is  the  fixing  of  what  prevention; 
are  commonly  known  as  fire-limits,  that  is  to  say,  regions  what  it 
in   which   inflammable   buildings   are  not   to   be    erected. 
These  areas  usually  include  the  business  sections  of  cities. 
Second,  the  cities  have  tried  to  eliminate  by  the  provisions 
of  ordinances  relating  to  buildings,  those  structural  features 
which  experience  has  shown  to  be  fire-spreading  agencies,         . 
such  as  the  combustible  party  wall  in  apartment  houses,  the 
wooden-shingle  roof,  the  unprotected  elevator-well,  and  the 
inflammable  connection  which  so  often  exists  between  the 
cellars  and  the  first  floors  of  tenements.2     Third,  the  science 
of  fire-prevention  has  been  applied  to  the  reduction  of  risk, 
in  special  structures  such  as  theatres,  factories,  department 
stores,  and  schools  by  the  enforcement  of  rules  adapted  to 
the  needs  of  each  type.     Frequent  inspections  to  insure  com- 
pliance with  these  regulations  are  made  by  the  fire-preven- 
tion authorities.     And,   finally,  there  is  the  campaign  of 
popular  education  which  aims  to  make  people  realize  that 

1  Some  notable  progress  in  the  way  of  establishing  children's  courts 
for  the  trial  of  juvenile  offenders  and  night  courts  for  the  speedy  deter- 
mination of  minor  accusations  has  been  made  in  the  larger  American  cities 
during  the  past  two  decades. 

2  About  one-quarter  of  all  tenement  house  fires  originate  in  the  cellars. 


608      THE  GOVERNMENT  OF  THE  UNITED  STATES 


How  fire- 
prevention 
rules  are 
enforced. 


The  fire 
depart- 
ments. 


2.   Public 
works. 


(a)  street 
planning. 


ignorance  and  carelessness  are  the  chief  factors  in  causing 
unintended  fires  to  start.  Wooden  walls  and  shingled 
roofs  do  not  cause  fires  to  begin,  but  merely  enable  them  to 
make  rapid  headway.  Fires  break  out,  in  most  cases,  as 
the  direct  outcome  of  human  negligence. 

The  work  of  enforcing  fire-prevention  rules  is  usually 
intrusted  to  special  state  or  city  authorities.  In  the  latter 
case  the  fire-prevention  bureau  is  a  branch  of  the  municipal 
fire  department.  As  yet  the  staff  of  officials  is  too  small  in 
most  cities  to  insure  the  frequent  and  thorough  inspections 
which  are  essential  to  a  rigid  enforcement  of  the  fire-pre- 
vention laws.  Fire-prevention  ought,  indeed,  to  be  a  state 
rather  than  a  municipal  function,  for  if  one  city  applies 
strict  rules  while  its  neighbors  refrain  from  so  doing,  the 
general  conflagration  hazard  will  still  exist  and  there  will 
be  inter-city  friction  over  the  matter  as  well.  Some  com- 
monwealths, including  Pennsylvania  and  Massachusetts, 
have  already  taken  hold  of  fire-prevention  as  a  state  enter- 
prise. 

The  fire-fighting  service  or  fire  department  in  nearly  all 
American  cities  is  in  charge  of  a  commissioner  or  chief  who 
is  usually  appointed  by  the  mayor.  The  officers  and  men 
under  his  control  are  organized  into  companies  on  a  semi- 
military  plan,  and  one  company  is  assigned  to  each  fire- 
district  or  precinct  of  the  city  with  a  fire-station  as  its  head- 
quarters. -  In  most  of  the  larger  cities  firemen  are  appointed 
under  civil  service  rules,  and  a  few  cities  have  training-schools 
for  the  new  men.  American  fire-brigades  have  been  brought 
to  a  high  plane  of  tactical  efficiency,  much  higher  than  those 
of  European  cities.  The  reason  is  that  the  need  for  quick 
and  effective  work,  because  of  conflagration  risks,  is  greater 
here  than  there. 

Public  works,  including  the  construction  and  manage- 
ment of  highways,  bridges,  sewers,  and  municipal  buildings, 
present  a  somewhat  related  group  of  problems  which  engage 
the  attention  of  a  separate  department  and  sometimes  of 
more  than  one  department. 

The  streets  are  a  city's  most  valuable  asset,  and  occupy 
from  one-quarter  to  one-third  of  its  entire  area.  To  pro- 
vide and  maintain  a  satisfactory  system  of  urban  highways 


MUNICIPAL  ADMINISTRATION  609 

involves  at  least  a  half  dozen  different  municipal  tasks. 
First,  there  is  the  proper  planning  of  streets,  a  matter  of  great 
importance,  because  highways  can  never  be  made  to  give 
their  maximum  service  to  the  community  if  badly  planned 
at  the  outset.  There  are  two  general  types  of  street  plan : 
the  rectangular  or  chessboard  scheme,  which  prevails  in 
nearly  all  cities,  and  the  radial  plan,  which  has  found  more 
general  favor  in  European  municipalities.  The  former  en- 
deavors to  make  all  highways  straight  and  to  have  them 
cross  each  other  at  right  angles;  the  latter  uses  diagonal 
or  winding  thoroughfares  which  radiate  from  designated 
centres.  Each  plan  has  its  merits,  and  to  some  extent  these 
meritorious  features  can  be  combined.  As  to  the  width  of 
streets  the  general  practice  has  been  to  make  highways  uni- 
form or  nearly  uniform  without  due  regard  to  the  extent  and 
nature  of  the  traffic  which  they  are  expected  to  bear.  Of  late 
years,  however,  new  streets  have  had  their  widths  determined, 
not  by  any  rule-of-thumb  method,  but  by  paying  strict  re- 
gard to  the  probable  needs  of  traffic.  Good  street  planning 
is  not  merely  [a  matter  of  making  the  highways  both  straight 
and  wide,  as  so  many  western  American  communities 
imagine.  Streets  have  to  be  paved,  cleaned,  and  lighted, 
every  inch  of  them,  so  that  every  unnecessary  foot  of  street 
space  represents  a  continuing  source  of  municipal  waste- 
fulness. 

Then  there  is  the  problem  of  good  surfacing.  Cities  have  (6)  street 
experimented  with  every  variety  of  street  paving,  including 
granite-blocks,  bricks,  wooden  blocks,  concrete,  asphalt,  and 
its  related  materials,  and  the  various  types  of  macadam. 
On  one  thing  the  authorities  are  now  agreed,  namely,  that 
there  is  no  best  form  of  pavement  for  streets  of  every  sort. 
One  type  is  best  for  heavy-traffic  thoroughfares,  another 
for  residential  streets,  and  still  another  for  boulevards  or 
parkways.  One  type  is  durable  but  expensive;  another 
costs  less,  and  is  easier  to  keep  clean,  but  does  not  last  so 
long.  The  selection  of  a  street  pavement  should  be  made 
in  accordance  with  the  volume  and  nature  of  traffic,  the 
general  character  of  the  highway,  whether  business  or  resi- 
dential, and  the  probable  future  development  of  the  neigh- 
borhood. These  matters  can  be  readily  worked  out  by 


610      THE  GOVERNMENT  OF  THE  UNITED  STATES 

highway  engineers.  Too  often,  however,  the  selection  is 
made  in  obedience  to  the  superficial  caprice  of  neighboring 
property  owners  or  to  the  influence  of  politician-contractors 
who  have  some  patented  brand  of  pavement  to  sell. 

3.  Sani-  The  congestion  of  factories,  shops,  and  dwellings  in  urban 
tation.          areas  makes  the  problem  of  waste  disposal,  including  rub- 
bish, garbage,  and  sewage,  one  of  great  importance.     Sewage, 
or  polluted  water  waste,  is  the  most  constantly  dangerous 
of  them  all.     There  are  ordinarily  from  one  hundred  and 
fifty  to  two  hundred  gallons  of  it  to  be  disposed  of  daily  for 
every  head  of  population.     Many  plans  of  sewage  disposal 
are  in  use  by  American  cities.     Some  municipalities  merely 
discharge  untreated  sewage  into  the  sea.     Others  carry  it 
to  reservoirs,  tanks,  or  basins,  where  the  solids  are  allowed 
to  settle  and  form  a  sludge,  the  effluent  being  run  off  into 
the  sea  or  some  neighboring  waterway.     The  settling  process 
is   sometimes   hastened   by   the  use   of   chemicals.     Other 
systems  of  sewage  disposal  such  as  intermittent  sand  filtra- 
tion and  oxidization  by  the  use  of  slag  contact-beds  are  in 
use  by  a  few  cities.     The  broad-irrigation  or  sewage  farm 
plan  of  disposal,  which  is  used  in  some  notable  instances 
abroad,  has  found  little  favor  in  America.     No  one  of  these 
systems  can  be  designated  as  the  best  under  all  circumstances. 
Local  conditions  differ  greatly  from  city  to  city  and  each 
case  requires  special  study. 

4.  Public          No  branch  of  municipal  activity  has  made  more  conspic- 

uous progress  during  recent  years  than  the  care  for  the 
public  health.  This,  in  turn,  has  been  the  result  of  the 
notable  advance  in  the  sciences  of  preventive  medicine 
and  public  hygiene.  The  old  boards  of  health,  with  their 
haphazard  methods,  have  in  many  cities  given  way  to  highly 
trained  health  commissioners  who  are  assisted  by  skilled 
specialists,  each  devoting  his  energies  to  some  particular 
aspect  of  the  general  problem.  The  work  of  a  municipal 
health  department  includes  the  collection  and  interpreta- 
tion of  vital  statistics  as  a  means  of  determining  the  health 
status  of  the  community.  Relatively  few  people  realize  that 
prompt  and  accurate  reports  relating  to  diseases  and  deaths 
form  the  groundwork  of  efficient  health  administration. 
Public  health  work  also  includes  the  quarantining  of  infec- 


MUNICIPAL  ADMINISTRATION  611 

tious  diseases,  the  inspection  of  the  milk  supply,  the  control 
of  every  agency  by  which  disease  may  be  spread,  and  a  mul- 
titude of  other  functions.  Nearly  every  state  also  maintains 
a  health  department,  which  assists  the  city  officials  when 
necessary  and  exercises  a  general  supervision  over  their 
work. 

The  city's  hospitals  fall  naturally  within  the  jurisdiction  Hospitals, 
of  the  health  department  although  they  are  sometimes 
administered  independently.  A  ^general  hospital  does  not 
nowadays  suffice  for  the  needs  of  any  large  group  of  popu- 
lation. A  separate  hospital  for  contagious  cases  and  a 
special  sanitarium  for  the  treatment  of  tuberculosis  are 
also  necessary,  and  many  of  the  more  progressive  cities  have 
provided  such  institutions. 

Measured  by  the  amount  of  money  spent  upon  it,  educa-  5.  Educa- 
tion is  the  most  important  of  all  municipal  functions.  Be-  tlon* 
cause  of  this  the  public  schools  are  usually  placed  under 
the  supervision  of  a  separate  board  or  committee,  the  mem- 
bers of  which  are  in  most  cities  elected  directly  by  the  people 
but  in  some  are  appointed  by  the  mayor.  In  general  these 
boards  have  three  different  groups  of  functions  to  perform. 
First,  they  provide  the  school  buildings  and  keep  them  in 
order.  Second,  they  have  duties  of  a  business  nature,  such 
as  the  purchase  of  fuel  and  supplies,  the  buying  of  school 
books,  and  the  management  of  school  finances.  In  some 
cities  the  school  taxes  are  assessed  and  collected  under  the 
direction  of  the  board  itself;  but  in  the  majority  of  them 
the  funds  for  the  support  of  the  schools  are  obtained  in  part 
from  the  general  city  revenues  and  in  part  from  the  state. 
Finally,  these  school  boards  have  the  duty  of  appointing 
the  superintendent,  engaging  and  promoting  teachers,  deter- 
mining salaries,  approving  changes  in  the  school  curricula 
and  settling  all  questions  of  educational  policy.  These 
functions,  when  taken  together,  are  of  far-reaching  influence 
for  good  or  ill.  From  one-fourth  to  one-third  of  a  city's 
entire  annual  revenue,  on  the  average,  is  spent  upon  its 
schools. 

In  every  part  of  the  United  States  the  local  schools  are  state  con- 
to  some  extent  under  state  supervision,  but  the  nature  and  ^^  al 
strictness  of  this  oversight  differ  greatly  from  state  to  state,  schools. 


612      THE  GOVERNMENT  OF  THE  UNITED  STATES 


The  widen- 
ing sphere 
of  public 
education. 


6.    Public 
library 
adminis- 
tration. 


In  some  of  them  the  local  school  board  has  little  discretion 
except  in  minor  matters ;  in  others  it  retains  a  large  amount 
of  independence.  Between  these  extremes  there  are  all 
gradations  of  freedom  and  restriction,  but  the  strictness 
of  state  oversight  is  roughly  proportioned  to  the  relative 
amounts  which  the  various  states  contribute  to  the  cities 
and  towns  for  the  support  of  their  schools.  The  general  ten- 
dency, moreover,  is  toward  greater  centralization  in  order 
that  school  administration  may  be  made  more  nearly  uni- 
form. Central  control  of  local  schools  is  exercised  through 
a  state  board;  or  a  state  superintendent  of  education,  or 
both. 

To  a  greater  extent  than  in  most  other  city  departments 
the  school  authorities  have  been  called  upon  for  many  new 
public  services  during  recent  years.  Evening  schools,  part- 
time  schools,  continuation  schools,  special  classes  for  handi- 
capped or  defective  children,  the  medical  and  dental  inspec- 
tion of  pupils,  vocational  guidance,  and  the  use  of  schools  as 
neighborhood  centres  in  evening  hours  —  these  indicate  only 
a  few  of  the  more  important  services  which  large  communi- 
ties now  call  upon  their  school  authorities  to  provide  in  ad- 
dition to  the  regular  work  of  ordinary  education.  During 
recent  years,  moreover,  the  establishment  of  public  play- 
grounds and  the  supervision  of  play  have  in  many  cities  be- 
come additional  responsibilities.  Supervised  play,  out  of 
school  hours,  is  now  recognized  as  an  integral  part  of  a 
city's  educational  system. 

The  public  library  is  potentially  a  far  more  effective 
agency  of  public  education  than  most  American  cities  have 
hitherto  made  it.  In  many  municipalities  it  is  merely  a 
depositary  of  books,  a  considerable  portion  of  which  are 
ephemeral  works  of  fiction.  For  the  most  part  the  library 
authorities  have  not  assumed  an  aggressive  leadership  in 
moulding  the  literary  tastes  of  its  clientele  or  in  actively 
developing  among  the  people  of  the  city  the  habit  of  read- 
ing books.  Library  boards  have  usually  been  made  up  of 
reputable  and  well-intentioned  citizens  who  give  their  ser- 
vices without  pay,  but  who  have  no  special  competence  in 
educational  matters  and  who  have  for  the  most  part  failed 
to  perceive  the  true  relation  between  a  public  library  and 


MUNICIPAL  ADMINISTRATION  613 

the  masses  of  the  people.  A  closer  coordination  between  li- 
brary and  school  administration  would  doubtless  have 
beneficial  results,  for  it  is  from  the  public  schools  that  the 
future  patrons  of  the  library  should  be  recruited.  At  any 
rate  boards  of  education  throughout  the  country  have  ex- 
panded their  service  to  the  whole  people  at  a  rate  which  has 
left  library  administration  far  behind.  Public  libraries  in 
American  cities  have  been  administered  honestly,  with  fair 
intelligence,  but  with  little  or  no  imagination  and  almost 
entirely  without  any  spirit  of  aggressive  service. 

In  all  large  centres  there  are  several  branches  of  adminis-  7.  Poor- 
tration  which  have  to  do  particularly  with  the  welfare  of  rehef' 
the  people  in  the  city's  congested  districts.     Poor-relief  is  a 
municipal  function  in  some  states,  but  in  others  it  is  a  func- 
tion of  county  government.     Everywhere,  however,  a  large 
part  of  the  work  is  left  to  voluntary  and  private  philan- 
thropy.    Public  responsibility  for  the  care  of  the  poor  has 
not  been  assumed  on  a  large  scale  in  America  as  it  has  been 
in  the  various  countries  of  Europe. 

Nor,  again,  has  the  proper  housing  of  the  people  had  the  8.  Housing 
same  amount  of  attention  except  perhaps  in  the  largest 
cities.  New  York  City  first  began  the  rigorous  regulation 
of  tenement  houses  in  1902,  and  its  example  has  since  been 
followed  by  many  other  urban  centres  in  the  United  States. 
Tenement  house  regulation  aims  to  eliminate  unsanitary 
conditions,  fire-traps,  and  overcrowding.  The  last  of  these  is 
the  most  difficult  of  all  to  prevent.  Housing  rules  have  not 
been  adequately  enforced,  however,  because  of  the  legal  diffi- 
culties which  often  stand  in  the  way  of  drastic  interference 
with  private  property  and  also  because  a  sufficient  corps 
of  inspectors  is  rarely  provided.  Political  or  personal  fa- 
voritism has  often  operated,  also,  as  a  barrier  to  the  rigid 
enforcement  of  the  rules. 

Cities  have  long  since  provided  parks  and  other  open  9.  Public 
spaces  for  the  use  of  the  people,  but  it  is  only  of  late  years  recreatlon- 
that  more  positive  measures  have  been  taken  in  the  way  of 
facilitating  public  recreation.     The  older  conception  of  mu- 
nicipal functions  went  no  further  than  the  essentials  of  com- 
munity life.     It  recognized  the  right  and  duty  of  the  city 
to  provide  for  the  public  safety  and  convenience,  but  did  not 


614   THE  GOVERNMENT  OF  THE  UNITED  STATES 


10.  The 
regulation 
of  public 
utilities. 


(a)  water- 
supply. 


regard  measures  for  the  public  amusement  as  being  within 
the  sphere  of  the  governing  powers.  This  provision,  it  was 
assumed,  might  better  be  left  to  voluntary  organizations. 
But  the  old  conception  has  been  steadily  broadening,  and 
American  government  in  all  its  branches  has  become  more 
paternal  during  the  present  generation.  To  provide  and 
maintain  public  baths  and  beaches,  to  pay  for  band  concerts 
out  of  municipal  funds,  to  place  municipal  gymnasiums  in 
different  parts-  of  the  city,  and  even  to  run  municipal  dance 
halls  —  public  money  is  now  being  provided  for  all  of  these 
things  in  some  of  the  larger  American  cities.  Along  with 
this  has  developed  a  stricter  regulation  of  private  amuse- 
ment places,  the  censorship  of  motion-picture  shows,  and  the 
subjecting  of  almost  all  other  places  of  recreation  to  more 
rigid  license  requirements.  A  much  greater  expansion  of 
municipal  recreation  facilities  is  likely  to  take  place  in  the 
years  to  come. 

The  provision  or  the  regulation  of  public  utilities  are  im- 
portant functions  of  all  cities.  Water  supply  is  the  oldest 
and  in  many  respects  the  most  essential  of  these.  A  few 
American  cities  still  leave  this  service  to  be  provided  by 
private  companies,  but  in  the  great  majority  it  is  owned  and 
operated  by  the  municipality.  The  work  is  usually  intrusted 
to  a  board  of  three  or  five  members,  who  are  elected  in  some 
of  the  smaller  cities  but  appointed  in  nearly  all  the  larger 
ones.  Their  functions  are  twofold  :  first  to  secure  and  main- 
tain an  adequate  and  safe  source  of  supply;  second,  to 
provide  for  its  distribution  to  the  institutions,  factories, 
shops,  and  homes  of  the  city.  In  many  cases  a  safe  and  ade- 
quate supply  can  be  found  within  a  reasonable  distance  of 
the  city ;  in  others,  the  water  must  be  brought  a  long  way  or 
must  either  be  purified  by  filtration  or  chemically  treated  to 
make  it  safe.  Large  groups  of  population  make  heavy 
demands  upon  water-supply,  averaging  about  one  hundred 
gallons  per  capita  every  day  in  the  year.  A  city  of  one 
hundred  thousand,  therefore,  will  have  a  daily  requirement 
of  ten  million  gallons.  In  its  relation  to  public  health  the 
city's  water-supply  is  manifestly  of  supreme  consequence, 
and  that  is  the  chief  reason  for  taking  it  directly  under  public 
control. 


MUNICIPAL  ADMINISTRATION  615 


Other  important  public  utilities  operating  within  the  limits  (&)  other 

franchise 
utilities. 


of  the  city  are  steam  railroads,  electric  lighting  plants,  gas  franchlsed 


plants,  telephone  systems,  and  electric  railways.  Steam  rail- 
roads are  wholly  under  national  or  state  regulation  and  the 
city  authorities  have  relatively  little  to  do  with  them.  Light- 
ing plants,  whether  gas  or  electric,  operate  under  what  are 
known  as  franchises  or  grants  of  privileges  made  by  the  mu- 
nicipalities, usually  for  a  stated  term  of  years  and  always 
subject  to  a  variety  of  conditions.  Street  railways  are  in  the 
same  category,  although  the  franchise  term  is  usually  longer. 
State  constitutions  and  laws  have  everywhere  imposed 
street  limitations  upon  the  powers  and  duties  of  cities  in  the 
matter  of  granting  these  franchises,  and  the  regulation  of  all 
public  utilities  has  passed  largely  into  the  hands  of  the  state 
authorities. 

Nearly  every  state  now  maintains  one  or  more  boards 
whose  function  it  is  to  supervise  the  enforcement  of 
franchise  conditions,  to  require  adequate  service,  to  hear 
complaints  from  customers  or  patrons,  and  in  some  cases  to 
regulate  the  rates,  tolls,  or  fares  which  may  be  charged.  The 
regulation  of  all  public  utilities  may  now  be  looked  upon  as 
a  state  rather  than  a  municipal  function.  This  is,  on  the 
whole,  as  it  ought  to  be,  for  the  companies  usually  operate 
in  more  than  a  single  municipality,  and  if  each  city  under- 
took its  own  regulating,  there  would  be  no  end  of  friction 
and  diversity  with  the  consequent  demoralization  of  the 
service. 

A  public  utility  is  a  natural  monopoly.  No  ultimate  good 
can  come  from  the  maintenance  of  competitive  telephone 
or  street  railway  services,  for  example.  These  corporations 
occupy  a  field  in  which  competition  means  duplication  of 
facilities,  public  inconvenience,  and  a  far  higher  cost  of  ren- 
dering the  service  in  the  end.  Two  practical  alternatives, 
and  only  two,  are  open  to  a  city.  It  may  give  a  complete 
monopoly  to  some  one  telephone  company,  street  railway 
company,  or  gas  company  with  a  defined  area  and  then  trust 
to  public  regulation  for  the  protection  of  the  public  interest. 
Or  it  may  acquire  the  service  and  operate  it  under  direct 
municipal  control. 

This  latter  alternative,  municipal  ownership  and   oper- 


616      THE  GOVERNMENT  OF  THE  UNITED  STATES 

11.  MU-  ation  of  public  utilities,  has  made  considerable  progress  in 
ownership.  ^e  United  States  although  by  no  means  so  much  as  in 
European  countries.  Municipal  ownership  of  water-supply 
has  had  the  greatest  development  everywhere.  Among 
sixty-five  American  cities  having  populations  of  100,000  and 
upward,  all  but  half  a  dozen  have  municipalized  their  water- 
supply  services.  This  is  chiefly  because  water-supply, 
unlike  lighting  or  transportation,  is  intimately  related  to  the 
public  health  and  to  the  hygienic  welfare  of  congested 
regions.  Electric  lighting  ranks  next  in  the  spread  of  mu- 
nicipal ownership.  There  are  nearly  six  thousand  elec- 
tric lighting  plants  in  American  municipalities,  large  and 
small,  of  which  number  more  than  a  fourth  are  in  public 
hands.  Gas  lighting,  on  the  other  hand,  has  had  no  such 
development.  There  are  only  about  thirty  municipal  gas 
plants  in  the  entire  country,  as  compared  with  about  fourteen 
hundred  in  private  ownership.  Of  the  cities  having  over 
30,000  population  only  five  own  and  operate  their  gas-lighting 
facilities.1  One  large  city,  Philadelphia,  owns  its  gas  plant, 
but  has  intrusted  its  operation  to  a  private  company.  In 
the  matter  of  street  railways  the  cities  of  the  United  States 
have  had  even  less  experience  with  the  policy  of  municipal 
ownership.  San  Francisco  is  the  only  large  city  that  has 
taken  over  any  considerable  part  of  its  street  railway  system, 
although  a  few  other  municipalities  own  and  operate  a  few 
miles  of  trackage. 

its  merits  Such  experience  with  municipal  ownership  as  American 
and  defects.  cfties  have  had  appears  to  indicate  that  wages  and  hours  of 
labor  for  employees  are  such  as  to  increase  the  costs  of  opera- 
tion ;  that  the  quality  of  the  service  rendered  is  not  better 
than  under  regulated  private  ownership ;  that  under  public 
ownership  an  additional  burden  is  usually  placed  on  the  tax- 
payers and  that  political  considerations  rather  than  business 
principles  determine  many  important  questions  of  operating 
policy.  On  the  other  hand,  municipal  ownership  assures 
some  protection  against  the  avaricious  practices  which  have 
been  more  than  common  under  private  operation,  such  as  the 
inflation  of  capital  stock,  the  payment  of  extravagant  salaries 

1  Richmond,  Va. ;  Wheeling,  W.  Va. ;  Duluth,  Minn. ;  Holyoke,  Mass., 
and  Hamilton,  0. 


MUNICIPAL  ADMINISTRATION  617 

for  managerial  and  legal  services,  and  the  arbitrary  treatment 
of  the  employees.  The  question  as  to  which  policy  is  the 
better  cannot  be  answered  in  general  terms.  It  can  only  be 
determined  with  reference  to  a  particular  city  and  a  partic- 
ular form  of  public  service. 


CHAPTER  XLIII 

COMMISSION  AND  CITY  MANAGER  GOVERNMENT 

THE  most  significant  feature  of  American  municipal 
development  during  the  last  twenty  years  has  been  the 
organic  reconstruction  of  government  in  several  hundred 
cities.  This  has  been  accomplished  by  throwing  over- 
board the  older  form  of  municipal  organization,  with  its 
division  of  powers  among  mayor,  boards,  and  council,  and 
putting  either  the  commission  or  city  manager  system  in 
its  stead.  This  striking  upheaval  in  local  government 
represents  a  political  renaissance  of  no  meagre  importance. 
It  has  embodied  both  a  protest  and  a  policy,  a  protest 
against  the  old  regime  in  city  administration  and  a  policy 
which  aims  to  secure  greater  directness  of  responsibility 
from  men  in  public  office.1 

The  begin-  The  beginnings  of  this  renaissance  were  the  direct  result 
Commission  °*  a  l°cal  disaster,  the  tidal  inundation  which  partly  de- 
movement,  stroyed  the  city  of  Galveston,  Texas,  in  1900.  Prior  to 
this  time,  Galveston  had  ranked  as  one  of  the  worst-gov- 
erned urban  communities  in  the  whole  country.  Under 
the  old  system  of  jurisdiction  by  a  mayor,  various  elective 
officials,  and  a  board  of  aldermen,  its  municipal  history 
managed  to  afford  illustrations  of  almost  every  vice  in 
local  government.  The  city  debt  was  allowed  to  mount 
steadily,  and  borrowing  to  pay  current  expenses  was  not 
uncommon.  City  departments  were  managed  wastefully. 
Professional  politicians  were  put  into  places  of  honor  and 
profit  in  the  city's  service.  The  accounts  were  kept  in 

1  The  best-known  works  on  this  subject  are  E.  S.  Bradford,  Commission 
Government  in  American  Cities  (N.  Y.,  1911) ;  Henry  Bruere,  The  New 
City  Government  (N.  Y.,  1912) ;  Ford  H.  MacGregor,  City  Government  by 
Commission  (Madison,  1911) ;  and  C.  R.  Woodruff,  City  Government  by 
Commission  (N.  Y.,  1911). 

618 


COMMISSION  AND  CITY  MANAGER  GOVERNMENT     619 

such  a  way  that  few  could  understand  what  the  financial 
situation  was  at  any  time.  The  tax  rate  was  high,  and  the 
citizens  got  poor  service  in  return  for  generous  expenditures. 

Affairs  were  in  this  condition  when,  in  September,  1900,  TheGaives- 
a  tidal  wave  swept  in  from  the  Gulf,  destroyed  about  one-  ton  plan* 
third  of  the  city,  and  put  the  municipal  authorities  face 
to  face  with  the  problem  of  reconstruction.  Before  the 
disaster  the  city's  financial  condition  was  precarious ;  now 
its  bonds  dropped  in  value,  and4t  was  apparent  that  funds 
for  the  work  of  putting  the  city  on  its  feet  could  not  be 
borrowed  except  at  exorbitant  rates  of  interest.  It  hap- 
pened that  much  of  the  real  estate  in  Galveston  was  held 
by  a  comparatively  small  number  of  citizens.  Some  of 
these,  accordingly,  went  to  the  legislature  of  the  state  of 
Texas  and  virtually  asked  that  the  city  be  put  into  receiver- 
ship. They  requested  that  the  old  city  government  be 
swept  away,  root  and  branch,  and  that  for  some  years,  at 
any  rate,  all  the  powers  formally  vested  in  the  mayor, 
aldermen,  and  subsidiary  organs  of  city  government  be 
given  to  a  commission  of  business  men.  This  drastic  ac- 
tion they  urged  as  a  means  of  saving  the  city  from  involve- 
ment in  grave  financial  difficulties,  if  not  from  actual 
bankruptcy.  Acceding  to  their  request,  the  legislature 
passed  an  act  empowering  the  governor  of  Texas  to  appoint 
three  of  the  five  commissioners,  and  providing  that  the 
other  two  be  elected  by  the  voters  of  Galveston.1  A  year 
or  two  after  they  had  taken  office,  however,  a  constitutional 
difficulty  arose.  In  a  matter  which  came  before  the  courts 
it  was  held  that  the  appointment  of  city  officers  by  the 
state  authorities  was  contrary  to  a  provision  in  the  Texas 
constitution ;  whereupon  the  legislature  amended  its  act 
by  providing  that  all  five  members  of  the  Galveston  com- 
mission should  be  chosen  by  popular  vote.2  The  same  three 
commissioners  who  had  been  holding  office  under  the  gov- 
ernor's appointment  forthwith  stood  for  election,  and  were 
elected  by  the  voters. 

As  thus  amended  in  1903,  the  Galveston  charter  provides  its  essential 
for  the  popular  election,  every  two  years,  of  five  commis-  features- 

1  Special  Laws  of  Texas,  1901,  ch.  12. 

2  Ibid.,  1903,  ch.  37. 


620      THE  GOVERNMENT  OF  THE  UNITED  STATES 

sioners,  one  of  them  to  be  entitled  the  mayor-president, 
and  all  to  be  chosen  at  large.  The  mayor-president  is 
the  presiding  chairman  at  all  meetings  of  the  commission, 
but  otherwise  he  has  no  special  powers.  The  commission, 
by  majority  vote,  enacts  all  ordinances  and  passes  all  appro- 
priations, the  mayor-president  voting  like  his  fellow-com- 
missioners. It  further  supervises  the  enforcement  of  its 
own  by-laws  and  regulates  the  expenditure  of  its  own  appro- 
priations. Likewise  it  handles  all  awards  of  contracts 
for  public  works.  In  a  word,  it  exercises  all  the  powers 
formerly  vested  in  the  mayor,  board  of  aldermen,  and  other 
officials,  acting  either  singly  or  in  concurrence.  The  com- 
missioners, by  majority  vote,  apportion  among  themselves 
the  headships  of  the  four  administrative  departments 
into  which  the  business  of  the  city  is  grouped ;  namely, 
the  departments  of  finance  and  revenue,  water  and  sewerage, 
police  and  fire  protection,  and  streets  and  public  property. 
The  mayor-president  is  not  assigned  to  the  head  of  any 
one  department,  but  is  supposed  to  exercise  a  coordinating 
supervision  over  them  all.  Each  of  the  commissioners 
is  thus  directly  responsible  for  the  routine  direction  of  one 
important  branch  of  the  city's  business.  Appointments 
of  permanent  officials  in  each  department  are  not  made  by 
the  commissioner  who  is  in  direct  charge,  but  by  vote  of 
the  whole  commission.  Minor  appointments  are,  however, 
left  to  the  commissioner  in  whose  department  they  may 
happen  to  fall. 

Success  of  The  Galveston  plan  was  not  intended  to  be  a  permanent 
system  °f  government  for  the  city.  Its  prime  object 
was  to  enable  Galveston  to  tide  over  a  difficult  emergency. 
Prepared  somewhat  hastily,  with  very  little  experience 
to  serve  as  a  guide,  it  vested  in  the  hands  of  a  small  body 
of  men  more  extensive  final  powers  than  most  cities  would 
care  to  give  away ;  but  the  lapse  of  a  few  years  demonstrated 
the  great  merits  of  the  new  system.  The  people's  civic 
spirit  was  aroused,  the  business  of  the  city  recovered  rap- 
idly, and  in  a  remarkably  short  time  the  place  was  again 
on  its  feet,  financially  and  otherwise.  Then  developed  the 
conviction  that  commission  government  was  a  good  form 
to  maintain  permanently.  The  other  cities  of  Texas, 


COMMISSION  AND  CITY  MANAGER  GOVERNMENT     621 

noting  conditions  under  the  new  charter  in  Galveston, 
came  forward  and  asked  the  legislature  for  similar  legisla- 
tion ;  and  in  the  course  of  a  few  years  the  new  plan  of  local 
government  was  authorized  for  use  by  general  act  in  all 
the  cities  of  the  state. 

This  development  naturally  attracted  attention  in  other  The  plan 
parts  of  the  country,  and  the  reform  organizations  of  vari-  northward 
ous  northern  cities  began  to  discuss  the  possibility  of  apply- 
ing the  scheme  to  the  solution^  of  their  own  municipal 
problems.  The  first  municipality  outside  of  Texas  to  accept 
the  plan  was  Des  Moines,  the  capital  city  of  Iowa.  In 
1907  the  Iowa  legislature  passed  an  act  permitting  any 
city  of  the  state  having  a  population  of  more  than  25,000 
to  adopt  a  commission  type  of  government ;  and  forthwith 
the  citizens  of  Des  Moines,  by  whom  the  act  had  originally 
been  brought  forward  and  urged,  took  advantage  of  the 
new  provision. 

The  Des  Moines  plan  of  government  by  commission  is  Adopted  by 
simply  a  new  edition  of  the  Galveston  plan,  similar  in  out-  D.ej?  Momea 

r  J  with  new 

line,  but  embodying  some  novel  features.  In  brief,  it  features 
provides  for  a  commission  consisting  of  a  mayor  and  four  added- 
councillors,  all  elected  at  large  for  a  two-year  term  by  the 
voters  of  the  city.  To  this  body  is  intrusted  all  the  powers 
hitherto  vested  in  the  mayor,  city  council,  board  of  public 
works,  park  commissioners,  boards  of  police  and  fire  com- 
missioners, board  of  waterworks  trustees,  board  of  library 
trustees,  solicitor,  assessor,  treasurer,  auditor,  city  engineer, 
and  all  other  administrative  boards  or  officers.  Under 
the  Des  Moines  plan  the  business  of  the  city  is  grouped  into 
five  departments ;  namely,  public  affairs,  accounts  and 
finances,  public  safety,  streets  and  public  improvements, 
and  parks  and  public  property.  By  the  terms  of  the  charter 
the  commissioner  who  is  elected  mayor  of  the  city  becomes 
head  of  the  department  of  public  affairs ;  each  of  the  other 
commissioners  is  put  at  the  head  of  one  of  the  other  depart- 
ments by  majority  vote  of  the  commission,  or  council,  as 
the  body  is  called  in  Iowa.  All  officers  and  employees  of 
the  various  departments  are  appointed  by  the  council, 
which  also  has  authority  to  choose  a  board  of  three  civil 
service  commissioners  to  administer,  under  its  direction, 


622      THE  GOVERNMENT  OF  THE  UNITED  STATES 

the  state  laws  relating  to  the  civil  service.     Most  of  the 
city  officers  come  within  the  scope  of  these  laws. 

Nature  of  Thus  far  the  system  diverges  but  very  slightly  from  the 
featured  Galveston  plan.  The  chief  difference  lies  in  the  fact  that 
the  Des  Moines  scheme  incorporates  what  are  commonly 
termed  the  newer  agencies  of  American  democracy  ;  namely, 
the  initiative,  referendum,  and  recall.  The  initiative  is 
the  right  of  25  per  cent  of  the  qualified  voters  of  the  city 
to  present  to  the  council  by  petition  any  proper  by-law  or 
resolution,  and  to  require,  if  such  be  not  passed  by  the  coun- 
cil, that  it  be  submitted  without  alteration  to  the  voters  by 
referendum.  If  at  such  referendum  it  receives  a  majority 
of  votes,  it  becomes  effective.  Or  if  the  council  should 
pass,  of  its  own  volition,  any  such  measure  (except  an 
emergency  measure),  it  cannot  go  into  effect  until  ten  days 
after  its  passage.  Meanwhile,  if  a  petition  protesting 
against  such  by-law,  signed  by  25  per  cent  of  the  voters 
of  the  city,  is  presented  to  the  council,  it  is  incumbent  on 
that  body  to  reconsider  the  matter.  If  the  by-law  is  not 
entirely  repealed,  it  must  then  be  submitted  to  the  voters 
for  their  acceptance  or  rejection.  The  vote  takes  place 
at  a  regular  election,  if  there  is  one  within  six  months ; 
otherwise  at  a  special  election  held  for  the  purpose.  If 
indorsed  at  the  polls,  the  measure  becomes  effective  at 
once;  if  rejected  by  the  voters,  it  becomes  inoperative. 
The  recall  provision  permits  the  voters  to  remove  from 
office  any  member  of  the  council  at  any  time  after  three 
months'  tenure  in  office.  Petitions  for  recall  or  removal 
must  be  signed  by  at  least  20  per  cent  of  the  voters, 
and  the  question  of  recalling,  or  in  other  words  forthwith 
ending  the  term  of  a  councillor,  is  put  before  them  at  a 
special  election. 

Since  its  adoption  in  Des  Moines  the  spread  of  the  re- 
vised commission  system  has  been  rapid.  During  the  next 
ten  years  a  great  many  cities,  scattered  about  in  forty-three 
states,  abolished  the  old  system  and  established  the  new 
one.1  Some  of  these  were  large  cities,  but  in  general  the 

1  The  only  states  which  do  not  have  any  cities  with  the  commission 
form  of  government  are  Delaware,  Indiana,  New  Hampshire,  Rhode 
Island,  and  Vermont.  The  most  important  cities  now  having  commis- 


COMMISSION  AND  CITY  MANAGER  GOVERNMENT     623 

commission  plan  seemed  to  appeal  more  strongly  to  the 
smaller  urban  centres. 

A  list  of  cities  that  have  the  system  at  the  present  day 
would  contain  the  names  of  more  than  three  hundred  munic- 
ipalities. Six  are  cities  with  populations  exceeding  200,000 
(including  Buffalo  and  New  Orleans)  ;  fourteen  are  cities 
with  populations  of  100,000  or  over.  The  others,  ranging 
from  a  few  thousand  upwards,  are  scattered  in  all  parts 
of  the  United  States  from  the  Atlantic  to  the  Pacific  and 
from  the  Canadian  to  the  Mexican  border. 

What  have  these  cities  gained  as  a  result  of  the  change  ?  Merits  of 
In  its  actual  working  the  new  system  has  shown  itself  pos- 
sessed  of  many  advantages.1  Of  these  the  most  striking  ment: 
one,  of  course,  arises  from  the  fact  that  the  plan  puts  an 
end  to  that  intolerable  scattering  of  powers,  duties,  and 
responsibilities  which  the  old  type  of  city  government  pro- 
moted to  the  point  of  absurdity.  By  enabling  public  atten- 
tion to  focus  itself  upon  a  narrow  and  well-defined  area, 
it  allows  the  scrutiny  which  voters  apply  to  the  conduct 
of  their  representatives  to  be  real,  and  not,  as  heretofore, 
merely  perfunctory.  The  system  does  not  guarantee  that 
a  city's  administration  shall  be  always  free  from  good 
ground  for  criticism  —  no  system  can  do  that ;  but  it  does 
guarantee  that  when  the  administration  is  faulty  there 
shall  be  definite  shoulders  upon  which  to  lay  the  blame. 
Under  the  commission  plan  the  responsibility  cannot  be  i.  Fixing 
bandied  back  and  forth  in  shuttlecock  fashion  from  mayor 
to  council  and  from  the  council  to  some  administrative 
board  or  officer.  Issues  cannot  be  clouded  by  shifty  deals 
among  several  authorities.  In  thus  eliminating  a  chaos 

sion  government  are  as  follows :  Birmingham,  Ala. ;  Berkeley  and  Oak- 
land, Cal. ;  Des  Moines,  la.;  Kansas  City  and  Wichita,  Kan.;  New 
Orleans,  La. ;  Lowell,  Mass. ;  St.  Paul,  Minn. ;  Omaha,  Neb. ;  Jersey  City 
and  Trenton,  N.  J. ;  Buffalo,  N.  Y. ;  Oklahoma  City,  Okla. ;  Portland, 
Ore. ;  Harrisburg  and  Reading,  Pa. ;  Memphis,  Tenn. ;  Dallas,  Houston, 
and  San  Antonio,  Texas ;  Salt  Lake  City,  Utah ;  Spokane  and  Tacoma, 
Wash. 

1  The  summary  of  merits  and  defects,  as  given  in  the  next  few  pages, 
is  based  upon  the  views  expressed  six  or  seven  years  ago  by  the  author 
in  his  Government  of  American  Cities,  and  which  a  close  observation  of 
commission  government  during  the  interval  has  not  in  any  way  caused 
him  to  change. 


624      THE  GOVERNMENT  OF  THE  UNITED  STATES 


2.  Facili- 
tates the 
handling  of 
business. 


3.  Helps  to 

eliminate 

friction. 


of  checks  and  balances,  another  name  for  which  is  friction, 
confusion,  and  irresponsibility,  the  new  framework  removes 
from  the  government  of  American  cities  a  feature  which, 
to  say  the  least,  has  in  practice  been  unprofitable  from 
first  to  last. 

Advocates  of  city  government  by  commission  have 
been  in  the  habit  of  saying  that  their  plan  would  give  cities  a 
business  administration.  They  pointed  out  that  a  city's 
affairs  are  of  the  nature  of  business,  not  of  government. 
Go  through  the  records  of  a  council-meeting  and  catalogue 
the  items  that  can  be  classed  as  legislation ;  the  list  will 
be  very  short  indeed.  By  far  the  greater  part  of  a  council's 
proceedings  have  to  do  with  matters  of  routine  adminis- 
tration, which  differ  slightly,  if  at  all,  from  the  ordinary 
operations  of  any  large  business  concern. 

Now  no  business  organization  could  reasonably  hope  to 
keep  itself  out  of  insolvency  if  it  had  to  do  its  work  with  any 
such  clumsy  and  complicated  machinery  as  that  which  most 
American  cities  have  had  imposed  upon  them.  What  would 
be  thought  of  a  business  corporation  that  intrusted  the  con- 
duct of  its  affairs  to  a  twin  board  of  directors  (one  board 
representing  the  stockholders  at  large  and  the  other  repre- 
senting them  by  districts),  and  gave  to  an  independently 
chosen  manager  some  sort  of  veto  power  over  them,  besides 
subjecting  his  appointments  to  their  concurrence?  It  is, 
of  course,  quite  true  that  a  city  is  something  more  than  a 
profit-seeking  business  enterprise.  The  affairs  of  the 
municipality  cannot  be  conducted  in  defiance  of  public 
opinion,  or  even  in  disregard  of  it ;  but  responsiveness  to 
popular  sentiment  is  not  necessarily  incompatible  with 
sound  methods  of  public  administration. 

The  system  of  government  by  commission  has  enabled  the 
authorities  of  the  city  to  conduct  business  more  promptly 
and  with  less  friction.  There  may  be  wisdom  in  a  multitude 
of  councillors,  but  the  history  of  those  municipalities  which 
maintain  large  deliberative  bodies  seems  to  warrant  the  im- 
pression that  this  collective  wisdom  is  not  of  very  high  grade. 
Unwieldy  councils  have  been  put  upon  American  cities  under 
the  delusion  that  democracy  somehow  associates  itself 
with  unwieldiness.  There  is  a  notion  in  the  minds  of  all 


COMMISSION  AND  CITY  MANAGER  GOVERNMENT     625 

democracies,  and  it  is  as  deep-seated  as  it  is  illusive,  that 
a  body  cannot  be  representative  unless  it  is  large  to  the 
pitch  of  uselessness  for  any  effective  action.  Even  delibera- 
tive bodies,  however,  reach  a  point  of  diminishing  returns, 
and  American  municipal  experience  seems  to  show  that 
this  point  is  not  fixed  very  high.  Large  city  councils  in 
the  United  States  have  everywhere  been  found  to  be  ill 
adapted  to  the  work  which  they  are  expected  to  do.  To  say 
that  they  display  greater  regard  for  the  interests  of  the 
people,  or  more  conservative  judgment  in  the  handling 
of  questions  of  policy,  than  do  small  councils  of  five,  seven, 
or  nine  men  is  to  disregard  the  undeniable  facts  of  the 
situation.  The  history  of  large  councils,  whether  in  New 
York,  Philadelphia,  Boston,  or  in  smaller  cities,  is  little 
more  than  a  record  of  political  manoeuvring  and  factional 
intriguery,  with  a  mastery  of  nothing  but  the  art  of  wasting 
time  and  money.  A  council  of  some  half  dozen  men  offers 
at  least  the  possibility  of  despatch  in  the  handling  of  city 
affairs ;  for  its  small  size  removes  an  incentive  to  fruitless 
debate,  and  affords  little  opportunity  for  resort  to  subter- 
fuges in  procedure. 

But  the  chief  merit  urged  in  behalf  of  the  commission  4.  induces 
plan  is  not  that  it  concentrates  responsibility  and  permits 
the  application  of  business  methods  to  the  conduct  of  a  city, 
city's  affairs,  important  as  these  things  are.  In  the  last 
analysis,  municipal  administration  is  as  much  a  question 
of  men  as  of  measures.  Efficiency  in  city  administration 
may  be  assisted  by  one  form  of  local  government  or  retarded 
by  another,  but  in  the  long  run  it  is  not  less  a  question  of 
personnel  than  political  framework.  Much  depends,  ac- 
cordingly, upon  whether  the  commission  form  of  govern- 
ment does  or  does  not  install  better  men  in  the  city's  posts 
of  power  and  responsibility. 

In  the  early  days  of  the  commission  propaganda  it  was  Hasitactu- 
•  argued  that  the  new  plan  could  not  fail  to  secure  a  higher  ^  done 
grade    of    councilmen    or    commissioners.    •  "Concentrate 
power,  it  was  said,  and  you  will  get  men  worthy  to  exercise 
it."     But  nearly  twenty  years'  experience  with  the  com- 
mission form  of  government  has  not,  on  the  whole,  borne 
out  this  prediction.     The  fact  is  that  the  great  majority 
2s 


626      THE  GOVERNMENT  OF  THE  UNITED  STATES 

of  those  who  have  been  elected  commissioners  under  the 
new  plan  are  men  who  held  some  public  office  under  the 
old.  What  has  actually  happened  is  not  the  drawing  of 
new  men  into  the  municipal  service,  but  the  retention  of 
the  best  among  the  old  groups  and  the  giving  to  them  a 
better  chance  to  achieve  satisfactory  results.  It  is;  at  any 
rate,  the  testimony  of  those  who  have  served  under  the  old 
plan  and  the  new  that  the  latter  gives  greater  opportunity 
and  greater  incentive;  and  it  is  the  experience  of  those 
cities  which  have  been  under  commission  arrangements 
for  several  years  that,  whatever  may  have  been  the  effect 
upon  the  personnel  of  the  administration,  the  change  has 
had  a  salutary  influence  upon  the  whole  tone  of  municipal 
affairs. 

5.  Reduces  Perhaps  the  most  convincing  evidence  that  cities  derive 
the  tax  rate.  a(jvantages  from  the  new  form  of  government  is  that  gath- 
ered by  the  United  States  Bureau  of  the  Census  and  pub- 
lished by  it  in  1916.  The  figures  relate  to  rates  of  taxation, 
expenditures,  and  loans  in  various  cities  both  before  and 
after  the  adoption  of  the  commission  plan.  Likewise  there 
is  a  comparison  of  annual  financial  statements  from  typical 
cities,  some  with  the  new  form  of  government  and  some 
with  the  old.  The  figures  leave  no  doubt  that  the  new 
plan  has  had  a  favorable  reaction  on  tax  rates  and  borrow- 
ing.1 Nor  do  the  statistics  tell  the  whole  story.  The 

1  U.  S.  Bureau  of  the  Census.  Comparative  Financial  Statistics  of 
Cities  under  Council  and  Commission  Government  (Washington,  1916). 

The  eight  mayor-and-council  cities  which  were  chosen  for  com- 
parison were  Indianapolis,  Indiana  (259,820) ;  Hartford,  Connecticut 
(107,521) ;  Youngstown,  Ohio  (100,593) ;  Troy,  New  York  (77,560) ;  Peoria, 
Illinois  (70,006);  Little  Rock,  Arkansas  (53,811);  Davenport,  Iowa 
(46,537) ;  and  Charlotte,  North  Carolina  (38,263),  representing  a  total 
population  in  1915  of  754,111,  or  an  average  of  94,000  each.  The  eight 
commission-governed  cities  were  Birmingham,  Alabama  (164,165) ; 
Lowell,  Massachusetts  (111,004);  Salt  Lake  City,  Utah  (109,736); 
Des  Moines,  Iowa  (97,304);  Pueblo,  Colorado  (51,218);  Topeka, 
Kansas  (47,102);  Montgomery,  Alabama  (42,154);  and  Austin,  Texas 
(33,218),  with  a  total  population  of  655,901,  or  an  average  of  82,000  for 
each  city. 

A  comparison  of  tax  levies  in  the  two  groups  of  cities  for  1915  shows 
that  the  average  per  capita  levy  of  property  taxes  for  the  eight  mayor 
cities  was  $16.36  as  against  $12.31  in  the  commission-governed  cities, 
or  a  difference  of  $4.05  in  favor  of  the  cities  under  government  by 
commission. 


COMMISSION  AND  CITY  MANAGER  GOVERNMENT     627 

improvement  in  the  general  tone  and  temper  of  municipal 
government  is  something  which  counts  for  much,  even 
though  it  cannot  be  set  down  on  a  balance  sheet. 

But  even  though   the  financial  results  seem  favorable,  Objections 
there  are  those  who  continue  their  objection  to  the  commis-  tothePlan: 
sion    plan    upon    political    grounds.     According    to    these 
opponents,  it  is  based  upon  a  wrong  principle  and  proposes 
a  dangerous  policy;    and  it  is  accordingly  branded  as  oli- 
garchical, undemocratic,   and  un-American.     But  to  urge  i.  "Takes 
that  because  a  governing  body  is  small  it  must  inevitably  J£enf°7th 
prove  to  be  bureaucratic  in  its  methods  and  unresponsive  city  away 
in  its  attitude,  is  merely  to  afford  a  typical  illustration  of 
politicians7  logic.     Whether  a  public  official  or  a  body  of 
officials  will  become  oligarchical  in  temper  depends  not 
upon  mere  numbers,  but  .upon  the  directness  of  the  control 
which  the  voters  are  able  to  exercise  over  those  whom  they 
put  into  office.     And  effectiveness  of  control  hinges  largely 
upon  such  matters  as  the  concentration  of  responsibility 
for  official  acts,  an  adequate  degree  of  publicity,  and  the 
elimination  of  such  features  as  national  party  designations 
attached   to   the   names   of   candidates   on   the   municipal 
ballots,  a  practice  which  has  always  served  in  the  United 
States  to  confuse  the  issues  presented  to  the  voters  at  the 
polls.     In  fact,  it  might  almost  be  laid  down  as  an  axiom 
deducible  from  American   municipal   experience  that   the 
smaller  an  elective  body  the  more  thorough  its  accounta- 
bility to  the  electorate. 

Commission  government,  we  are  told  by  those  who  have  2.  is  not 
been  and  are  still  opposing  it,  is  inadequately  represent  a-  ^e^atel 
tive ;  five  men,  chosen  at  large,  cannot  represent  the  varied  sentative. 
interests,  political,  geographical,  racial,   and  economic,   in 
any  large  municipality.     If  it  be  true  that  in  the  conduct 
of  his  local  affairs  a  voter  cannot  be  adequately  represented 
except  by  one  of  his  own  neighborhood,  race,  religion,  politics, 
and  business  interests,  then  his  criticism  is  entirely  reason- 
able.    But  is  this  not  the  reductio  ad  absurdum  of  the  repre- 
sentative principle?     Would  not  a  recognition  of  this  doc- 
trine absolutely  preclude  all  chance  of  securing  a  municipal 
administration  loyal  to  the  best  interests  of  the  city  as  a 
whole  ?     It  has  been  frequently  proved  in  the  United  States 


628      THE  GOVERNMENT  OF  THE  UNITED  STATES 

that  a  single  official,  like  the  President  of  the  nation  or  the 
governor  of  a  state  or  the  mayor  of  a  city,  may  more  truly 
represent  popular  opinion  than  does  a  whole  Congress  or 
state  legislature  or  municipal  council.  Popular  sentiment 
is  not  difficult  to  ascertain  when  a  public  officer  takes  the 
trouble  to  ascertain  it.  Five  men  can  do  it  as  easily  as 
fifty,  and  they  are  much  more  likely  to  try. 

"  The  smaller  the  council,  the  more  easily  can  it  be  reached 
and  corrupted."  In  other  words,  it  is  easier  for  crooked 
politicians  or  professional  lobbyists  to  corrupt  or  coerce 
five  councillors  than  fifty.  There  is  safety  in  numbers. 
But  the  flaw  in  this  line  of  argument  is  its  assumption.  It 
assumes  that  sinister  influences  exert  themselves  directly 
upon  the  councillors  one  by  one,  and  hence  that,  where  a 
large  council  exists,  the  forces  of  corruption  or  coercion  must 
deal  with  a  large  body  of  men.  That  this  is  not  the  case, 
however,  every  one  who  has  had  anything  to  do  with  mu- 
nicipal politics  knows  very  well.  Large  councils  in  this 
country  have  been,  for  the  most  part,  made  up  of  men  who 
owed  their  nomination  and  election  to  political  leaders 
to  whom  the  councillors  have  been  under  permanent  obli- 
gations, and  from  whom  they  have  taken  their  orders. 
A  few  bosses,  sometimes  a  single  boss,  can  control  a  majority 
of  the  council,  and  can  deliver  the  necessary  votes  to  any 
proposition  when  the  proper  incentive  appears.  Politicians 
or  contractors  who  wish  to  get  what  they  are  not  entitled 
to  have  do  not  approach  the  council  through  its  members 
one  by  one.  They  have  always  dealt  with  the  middle- 
man ;  that  is  to  say,  with  the  political  leader,  who  controls 
the  votes  of  the  councilmen.  Accordingly,  they  have 
had  to  do  with  perhaps  five  men,  not  with  fifty,  and,  what 
is  more,  with  five  men  who  have  power  without  responsi- 
bility, who  were  not  invested  with  authority  by  the  voters, 
and  are  consequently  not  accountable  to  them  for  the  abuse 
of  it.  Under  commission  government,  on  the  contrary, 
a  favor-seeking  private  interest  has  had  to  deal  not  with 
a  few  middlemen,  who  have  the  votes  of  others  to  deliver, 
but  with  five  men  who  are  free  to  act  as  they  think  best 
and  who  act  with  the  eyes  of  the  voters  upon  them. 

Objection  is  raised  against  commission  government  on 


COMMISSION  AND  CITY  MANAGER  GOVERNMENT     629 

the  ground  that  it  puts  into  the  hands  of  a  single  small  3.  Abolishes 
body  of  men  the  power  both  to  appropriate  and  to  spend  ^^ 
public  money.  Such  an  arrangement,  it  is  said,  and  said  checks  and 
truly,  violates  an  established  principle  of  American  govern-  balances- 
ment,  which  demands  that  in  the  interests  of  economy  and 
honesty  these  two  powers  should  be  lodged  in  separate 
hands.  It  commits  to  a  single  board  of  five  men  the  power 
of  fixing  the  annual  tax  rate,  of  appropriating  the  revenues 
to  the  different  departments,  and, of  supervising  the  detailed 
expenditure  of  the  funds  so  apportioned.  Unorthodox 
as  this  arrangement  may  appear  to  be,  however,  it  is  not 
necessarily  objectionable  on  that  account.  Many  novel 
features  have  come  into  American  governmental  methods 
within  comparatively  recent  years,  and  all  have  had  to 
meet  the  cry  that  they  involved  departure  from  the  time- 
honored  way  of  doing  things  in  this  country.  Moreover, 
the  fusion  of  appropriating  and  spending  powers  in  the 
organization  of  city  government  is  not  unprecedented. 
This  very  principle  is  at  the  foundation  of  the  English  mu- 
nicipal system ;  and,  as  the  world  knows,  it  has  proved  in 
operation  neither  a  source  of  corruption  nor  an  incentive 
to  extravagance.  Furthermore,  those  American  cities  which 
have  had  the  commission  form  of  government  for  nearly 
a  dozen  years  find  nothing  objectionable  in  this  blending  of 
the  two  powers ;  on  the  contrary,  their  experience  with 
it  seems  to  indicate  that  it  possesses  some  important  ad- 
vantages over  the  old  plan  of  separation.  It  inspires  greater 
care  in  making  the  estimates  and  promotes  greater  success 
in  keeping  within  them  when  made.  Commissions  have 
unquestionably  not  proved  to  be  less  capable  of  handling 
expenditures  than  were  the  various  executive  boards  and 
officials  that  formerly  had  charge  of  such  work. 

A  much  more  substantial  objection  to  the  commission  4.  it  places 
plan  arises  from  the  fact  that  it  practically  abolishes  the  ^.®a^™m" 
office  of  mayor,  that  it  does  not  provide  an  apex  for  the  power  in 
pyramid  of  local  administration.     Now,  the  mayoralty  is 
a  post  that  has  established   a   fair   tradition   in  America, 
and  there  is  a  rational  function  for  it  to  perform.     It  stands 
in  the  public  imagination  as  the  one  municipal  office  in 
which  all  administrative  responsibility  can  be  centralized. 


630      THE  GOVERNMENT  OF  THE  UNITED  STATES 

To  lodge  all  such  power  and  responsibility  in  the  hands 
of  five  men  is  better  than  to  put  it  in  the  hands  of  fifty ; 
but  to  place  most  of  it  in  the  hands  of.  one  man,  duly  sur- 
rounded by  the  necessary  safeguards,  is  better  still.  The 
commission  plan  achieves  at  best  a  five-headed  unifica- 
tion of  responsibility ;  it  leaves  room  for  friction  on  a  three- 
to-two  basis ;  it  affords  ample  scope  for  wasted  energy  and 
for  the  management  of  the  city's  business  in  such  way  as 
to  serve  personal  or  political  ambitions.  This  is  not  a  mere 
possibility  of  the  system,  for  many  commission-governed 
cities  are  finding  it  to  be  a  disappointing  reality.  Jealousy 
among  the  five  commissioners  has  often  led  to  friction  and 
working  at  cross-purposes.  There  has  been  too  much  evi- 
dence of  a  disposition  to  "play  politics  "  ;  that  is  to  say,  too 
much  readiness  on  the  part  of  the  individual  commissioner 
to  popularize  himself  with  his  constituents  even,  when  by 
so  doing  the  general  interests  of  the  city  are  likely  to  suffer. 
5.  its  But  even  more  serious  as  a  defect  of  the  commission  plan, 

makeeuse  of  as  snown  ^7  ^s  years  of  experience,  is  its  failure  to  make 
experts.  full  use  of  expert  service  in  handling  the  regular  work  of 
the  city.  The  commissioner  who,  on  election,  takes  charge 
of  some  special  branch  of  the  city's  business  (such  as  police 
and  fire  protection,  or  water  and  light)  is  a  layman,  unskilled 
in  the  problems  of  his  new  department.  But  he  draws  a  good 
salary  from  the  city,  and  naturally  desires  to  make  at  least  a 
pretence  of  earning  it.  The  consequence  is  that  he  becomes 
too  busy  with  the  matters  which  are  under  his  direction, 
often  hampering  the  skilled  efforts  of  the  permanent  officials 
such  as  the  chief  of  police  or  fire  chief  or  head  of  the  water 
service,  ordering  things  about  as  political  motives  or  as  a 
desire  to  secure  his  own  reelection  may  dictate.  The  result 
is  that  these  officials  disclaim  responsibility,  often  lose 
enthusiasm,  or  sometimes  resign  and  are  replaced  by  more 
pliable  subordinates. 

Now  the  commission  plan  did  not  at  its  inception  con- 
template that  development.  It  assumed  that  the  five 
\  commissioners,  not  being  experts  themselves,  would  be 
guided  by  expert  advice.  But  in  the  great  majority  of 
commission-governed  cities  (that  is  to  say,  cities  with 
50,000  population  or  less)  there  is  hardly  room  for  two  well- 


COMMISSION  AND  CITY  MANAGER  GOVERNMENT     631 

paid  men  at  or  near  the  head  of  each  division  of  work.  The 
taxpayers  do  not  feel  like  paying  a  commissioner  of  public 
safety  an  annual  salary  of  $2500  or  more,  and  also  provid- 
ing full-salaried  officials  at  the  head  of  the  police  and  fire 
protection  services.  The  tendency  has  been,  with  political 
motives  in  play,  to  pay  the  commissioners  more  and  the 
officials  less.  The  result  is  that  in  many  cases  the  pro- 
fessional's part  in  administration  has  been  curtailed,  while 
the  elective  commissioner,  although  not  qualified  by  train- 
ing to  do  so,  has  assumed  technical  functions. 

It  is  with  a  view  to  improving  the  commission  plan  and  The  city- 
particularly  to  securing  a  greater  concentration  of  adminis- 
trative  responsibility  that  the  city-manager  scheme  has 
more  recently  been  devised.  The  city-manager  arrange- 
ment does  not  embody  a  new  scheme  of  local  government, 
but  merely  a  variation  of  the  commission  system,  designed 
to  secure  a  more  effective  concentration  of  administrative 
functions  in  the  hands  of  a  professional  well-paid  expert, 
removing  from  the  elective  commissioners  the  power  to 
interfere  with  the  details  of  municipal  business.  The  first  its  origin, 
city  to  try  an  experiment  along  this  line  was  Dayton,  Ohio, 
where  the  new  arrangement  went  into  effect  on  January 
1,  1914.  Since  that  date  the  example  has  been  followed 
by  many  other  municipalities,  and  additions  to  this  list 
are  being  rapidly  made  at  the  present  time. 

According  to  the  Dayton  plan  an  elective  commission  its  essential 
of  five  members  controls  all  branches  of  the  city's  affairs,  features- 
legislative  and  administrative,  except  the  schools,  which 
are  under  a  separate  board.  The  members  of  the  commis- 
sion are  chosen  by  popular  vote  for  a  four-year  term,  but 
are  subject  to  recall  by  an  adverse  vote  at  any  time  after 
six  months  of  service.  The  commission,  by  majority  action, 
enacts  the  ordinances  and  fixes  the  tax  rate.  It  also 
votes  the  appropriations  and  may  create  or  abolish  city 
departments.  But  it  does  not  directly  have  anything 
to.  do  with  the  actual  management  of  the  various  depart- 
ments, nor  does  it  immediately  supervise  the  work  of  the 
officials.  These  responsibilities  it  delegates  to  a  high  official 
with  the  title  of  city-manager,  appointed  by  the  commission 
to  hold  office  during  its  pleasure  and  paid  a  good  salary. 


632      THE  GOVERNMENT  OF  THE  UNITED  STATES 


Functions 
of  the  city 
manager. 


Is  the  plan 
a  success? 


Preferen- 
tial voting. 


Now  as  to  the  city  manager's  duties.  They  are  fourfold. 
First  of  all,  in  an  advisory  capacity  he  attends  all  meetings 
of  the  commission,  with  the  right  to  be  heard  and  to  make 
recommendations,  but  not  to  vote.  Secondly,  he  is  the 
enforcer  of  all  ordinances.  In  the  third  place  he  appoints 
all  other  city  officials  and  employees,  subject,  however,  to 
the  civil  service  regulations,  and  may  suspend  or  dismiss 
any  of  them  for  proper  cause.  In  this  connection  he  assigns 
to  each  official  the  sphere  of  work  to  be  done.  And,  finally, 
he  prepares  the  annual  estimates,  submitting  them  to  the 
commission  for  action;  and  he  is  the  general  supervisor 
of  all  the  work  done  in  the  various  departments  and  offices, 
having  charge  of  contracts,  the  purchase  of  supplies,  and 
so  forth,  the  details  being  handled  by  his  subordinates. 
He  is,  in  a  word,  the  general  manager  of  the  corporation. 

Since  1914  the  city  manager  plan,  or  some  variation  of 
it,  has  been  established  in  about  ninety  American  cities. 
Only  two  of  these,  Dayton  and  Grand  Rapids,  are  places 
of  over  100,000  population;  but  the  list  includes  a  dozen 
cities  of  25,000  or  over.  Naturally  enough  the  plan  has 
proved  most  popular  in  the  smaller  communities. 

So  far  as  one  may  judge  from  four  or  five  years'  experi- 
ence, the  city  managership  forms  a  highly  valuable,  if  not 
an  indispensable,  adjunct  to  the  commission  plan  of  govern- 
ment. It  strengthens  the  latter  at  its  weakest  point  by 
insuring  a  high  grade  of  professional  skill  at  the  apex  of 
the  city's  administrative  service.  As  for  the  future,  much 
will  depend  upon  two  things :  in  the  first  place  whether 
cities  find  it  possible  to  get  the  right  sort  of  men  for  man- 
agerial positions,  and  in  the  second  place  whether  the 
position  can  be  kept  out  of  the  vicious  circle  of  political 
patronage.  The  latter  danger  is  the  more  likely  to  be  en- 
countered, and  indeed  it  has  already  made  its  appearance. 
Some  municipalities  are  already  insisting  that  the  city 
manager  shall  be  "a  local  man"  and  that  he  shall  be  paid 
a  very  moderate  salary.  If  that  policy  becomes  general, 
the  whole  plan  will  be  rendered  ineffective. 

The  commission  system  and  the  city  manager  plan  have 
brought  with  them,  in  some  municipalities,  a  change  of 
election  methods.  Preferential  voting,  in  a  number  of 


COMMISSION  AND  CITY  MANAGER  GOVERNMENT     633 

cities,  has  replaced  the  method  of  straight  balloting. 
Under  the  so-called  Australian  ballot  system,  as  used  in 
the  United  States,  each  voter  designates  his  first  choice 
only.  An  inevitable  result  of  this  system  is  that  the  candi- 
date who  stands  highest  at  the  poll  (in  cases  where  there 
are  several  candidates  for  the  same  office)  may  have  re- 
ceived a  considerable  minority  of  the  total  votes  cast.  In 
such  instances  the  person  elected  does  not  genuinely  repre- 
sent the  wishes  of  the  majority.1"  The  preferential  system 
of  voting  permits  each  voter  to  designate  not  only  his  first, 
but  his  second  and  third  choices  as  well.  If  any  candidate 
receives  a  clear  majority  of  first  choices,  he  is  declared 
elected  without  any  counting  of  second  choices.  But  if 
no  one  obtains  such  majority,  the  second  choices  are  added 
to  the  first  choices  and  a  further  computation  made  to 
ascertain  whether  any  candidate  thereby  secures  a  ma- 
jority. In  like  manner  the  third  choices  are  resorted  to  if 
necessary.  Preferential  voting  has  been  adopted  and  used 
with  satisfactory  results  in  many  American  cities  during 
the  last  ten  years.1 

Preferential  voting  should  be  distinguished  from  pro-  Propor- 
portional  representation,  which  is  another  electoral 
method  brought  into  use  during  the  past  decade.  Various  tion. 
schemes  for  securing  the  proportional  representation  of  all 
factions  among  the  voters  have  been  under  discussion  by 
students  of  government  for  a  half  century  or  more,  but 
none  of  them  has  had  a  fair  trial  in  any  American  com- 
munity until  a  few  years  ago  when  Ashtabula,  Ohio,  in- 
augurated one  of  these  plans  in  connection  with  the  work- 
ings of  its  commission-manager  government.  The  details  of 
the  Ashtabula  scheme  seem  at  the  first  glance  to  be  rather 
complicated,  but  in  its  actual  operation  the  plan  has  thus 
far  presented  no  great  difficulties  to  the  voters.  The  ballot 
used  is  something  like  that  employed  under  the  preferential 
system,  but  the  method  of  counting  the  votes  is  altogether 
different.  By  dividing  the  total  number  of  votes  cast  by 

1  The  details  of  the  plan  differ  somewhat  in  different  cities.  For  a 
discussion  of  the  workings  and  merits  of  the  system  see  the  Bulletin  on 
Preferential  Voting,  prepared  for  the  Massachusetts  Constitutional  Con- 
vention, 1917,  and  the  references  there  given. 


634      THE  GOVERNMENT  OF  THE  UNITED  STATES 

the  number  of  offices  to  be  filled,  a  quota  is  established.  If 
any  candidate  is  found  to  have  received  a  number  of  first 
choices  equal  to  this  quota,  or  above  it,  he  is  declared 
elected.  If  he  have  a  surplus  of  first  choices  above  the 
quota,  this  surplus  is  distributed  to  other  candidates  in 
accordance  with  the  second  choices  indicated.  On  each 
count,  moreover,  the  lowest  candidate  drops  out  and  his 
votes  are  distributed,  similarly,  among  those  who  remain. 
This  procedure  is  continued  until  enough  persons  have  been 
declared  elected  to  fill  the  available  offices. 

This,  of  course,  is  only  one  among  various  systems  of 
proportional  representation.  There  are  at  least  a  half 
dozen  others.1  But  the  purpose  is  in  all  cases  the  same, 
namely,  to  give  each  fraction  of  the  electorate  its  due  share 
of  representation.  Under  the  system  of  election  which 
prevails  in  general  throughout  the  United  States  no  repre- 
sentation is  accorded  to  any  party  except  the  two  leading 
parties.  The  chief  objection  to  proportional  representation 
is  its  seeming  complexity  when  presented  to  the  average 
man.  It  looks  pedantic  and  intricate.  In  its  actual  appli- 
cation, however,  no  scheme  of  proportional  representation 
yet  used  in  any  country  has  proved  too  complicated  for 
the  voters  to  comprehend. 

Conclusion.  A  word  in  conclusion.  America  has  not  yet  reached  a 
final  solution  of  those  problems  of  municipal  government 
which  seemed  to  constitute  during  the  latter  half  of  the 
nineteenth  century  the  most  vexing  of  all  the  problems  of 
the  Republic.  But  at  any  rate  notable  progress  has  been 
made.  Old  theories  have  been  discarded  ;  obsolete  political 
mechanism  has  been  relegated  to  the  scrap  heap.  New 
theories  and  institutions  are  being  given  a  new  trial.  With 
this  has  come  an  awakened  interest  in  municipal  affairs, 
and  things  which  were  not  intelligible  to  the  electorate 
because  of  the  elaboration  of  municipal  checks  and  balances 
have  become  intelligible  now. 

But  before  the  average  American  city  becomes  a  model 

1  The  best  known  book  on  this  subject  is  J.  R.  Commons,  Proportional 
Representation  (N.  Y.,  1907).  References  to  recent  publications  deal- 
ing with  the  various  plans  may  be  found  in  the  Massachusetts  Constitu- 
tional Convention's  Bulletin  on  Proportional  Representation  (Boston,  1917). 


COMMISSION  AND  CITY  MANAGER  GOVERNMENT     635 

of  efficiency  and  thrift,  a  great  deal  more  remains  to  be 
done.  Rings  and  bosses  will  still  get  control  of  cities  from 
time  to  time  as  they  managed  to  do  in  days  gone  by.  But 
such  victories  of  the  enemy  do  not  now  spell  disaster. 
Frenchmen  said  of  the  Bourbon  Restoration  in  1814  that 
it  brought  back  the  old  dynasty  but  not  the  old  regime. 
So,  too,  the  stalwarts  of  Tammany  and  of  similar  organiza- 
tions throughout  the  land  may  occasionally  come  back  to 
a  fleeting  lease  of  power,  but  the  public  indifference  which 
once  gave  them  a  strangle-hold  on  the  municipal  treasury 
is  gone,  and  gone  forever. 


INDEX 


Academy  of  Political  Science,  Proceed- 
ings, 434  n. 

Adams,  H.  C.,  Public  Debts,  234  n; 
Science  of  Finance,  460  n. 

Adams,  John,  Works,  48  n. 

Address,  removal  of  state  judges  by,  497. 

Administration,  national  and  the  Cab- 
inet, 126-145 ;  in  the  states,  443-459  ; 
in  cities,  602-617. 

Agger,  E.  E.,  Budget  in  American  Com- 
monwealths, 466  n. 

Agriculture,  federal  Department  of,  138. 

Alaska,  government,  137,  377  ;  delegates 
to  National  Convention,  334. 

Albany  Congress,  10. 

Aldermen.     See  City  Council. 

Amendments,  to  the  Constitution,  67- 
69;  first  ten,  67-68,  352-356; 
Eleventh,  68,  347-348;  Twelfth,  68, 
91 ;  Fourteenth,  72-73,  243,  398-400 ; 
Fifteenth,  79-80;  Seventeenth,  151- 
152;  Sixteenth,  226;  to  state  con- 
stitutions, 412. 

American  Historical  Review,  28  n. 

American  Judicature  Society,  Bulletin, 
496  n. 

American  Year  Book,  274  n. 

Ames,  H.  V.,  "Proposed  Amendments 
to  the  Constitution,"  69  n. 

Andrews,  C.  M.,  Colonial  Self-Govern- 
ment, 3  n. 

Annapolis  Convention,  24-25. 

Appointments,  by  the  President,  106- 
110;  confirmation  by  Senate,  163- 
164 ;  recess,  164 ;  by  state  governors, 
438-441,  495-496;  by  mayors,  591- 
592  ;  of  city  officials,  593-595. 

Appropriation  bills,  customary  origin  in 
House  of  Representatives,  66 ;  share 
of  Treasury  Department  in,  133-134  ; 
of  Senate  in,  173-174 ;  passage 
through  Congress,  302-309.  See  also 
Finance. 

Army,  control  of  President  over,  121 ; 
under  War  Department,  136 ;  of  the 
United  States,  266-268. 

Articles  of  Confederation,  adoption,  13 ; 
constitutional  importance,  14-15 ; 


general  provisions,  15 ;  powers  of 
Congress  under,  15-16 ;  ratification, 
16-17;  weaknesses,  20-23;  accom- 
plishments, 23-24. 

Articles  of  War,  269-270. 

Ashtabula,  Ohio,  proportional  represen- 
tation in,  633-634. 

Attainder,  bill  of,  169,  288-289,  396. 

Baldwin,  S.  E.,  American  Judiciary, 
355,  490  n. 

Ballot,  in  congressional  elections,  184 ; 
need  for  shorter,  482 ;  in  preferential 
voting,  632-633;  in  proportional 
representation,  633-634. 

Banking  system,  national,  connection 
with  Treasury  Department,  134-135 ; 
in  general,  233-248 ;  history  of,  234- 
239;  defects,  239-240;  Federal  Re- 
serve, 240-241 ;  of  the  states,  449-450. 

Bankruptcy,  power  of  Congress  over, 
277-278. 

Barnett,  J.  D.,  Initiative,  Referendum 
and  Recall  in  Oregon,  501  n. 

Bastable,  C.  F.,  Public  Finance,  460  n. 

Beard,  C.  A.,  Economic  Interpretation  of 
the  Constitution,  41  n ;  Supreme  Court 
and  the  Constitution,  53  n,  362  n; 
American  Government  and  Politics, 
550  n. 

Beard,  C.  A.,  and  Schultz,  B.  E.,  Docu- 
ments on  State-wide  Initiative,  Referen- 
dum and  Recall,  501  n. 

Bicameral  legislature,  adoption  of,  in 
Congress,  146-147 ;  merits  and  de- 
fects, in  states,  416-418  ;  in  cities,  595. 

Bicknell,  Edward,  Territorial  Acquisi- 
tions of  the  United  States,  372  n, 

Bill  of  Rights,  as  first  ten  amendments, 
67-68 ;  rights  of  citizens  secured  by, 
84-85 ;  limitations  on  judicial  pro- 
cedure, 352-356 ;  in  original  state 
constitutions,  406-407. 

Bills,  passage  of,  by  agreement  of  Senate 
and  House,  174-175;  in  House  of 
Representatives,  201-206 ;  in  state 
legislatures,  425-428.  See  also  Money 
bills,  Veto  power. 


637 


638 


INDEX 


Bimetallism,  conflict  over,  278-279. 

Blackstone's  Commentaries  on  the  Laws 
of  England,  349  n. 

Blaine-Cleveland  presidential  campaign, 
98. 

Bloomfield  v.  Charter  Oak  Bank,  561. 

Boln  v.  Nebraska,  394. 

Bonds,  federal,  types  of,  241-243;  re- 
funding, 243-244  ;  in  states,  471-472. 

Borgeaud,  C.,  Adoption  and  Amendment 
of  Constitutions,  405  n. 

Boroughs,  in  the  colonies,  538,  578. 

Borrowing,  power  of,  under  the  Con- 
federation, 15,  21 ;  of  Congress,  233- 
245;  methods  of,  federal,  241-243; 
in  states,  469-472  ;  in  cities,  598. 

Bosses,  political,  484-487. 

Boston  Budget  Commission,  Report, 
309  n. 

Bradford,  E.  S.,  Commission  Government, 
618  n. 

Brannan,  Henry,  Treatise  on  Fourteenth 
Amendment,  399  n. 

Brown  v.  Maryland,  249  n. 

Bruere,  Henry,  New  City  Government, 
618  n. 

Bryce,  James,  American  Commonwealth, 
96,  307,  342,  361-362;  on  veto 
power,  119;  on  Chief  Justice  Mar- 
shall, 361-362. 

Budget  system,  lack  of,  in  federal  gov- 
ernment, 309-310 ;  in  states,  466-469. 

Bullock,  C.  J.,  Finances  of  the  United 
States,  1775-1789,  21  n. 

Burke,  Edmund,  on  form  of  government, 
70 ;  on  duty  of  representatives,  186 ; 
on  political  parties,  322. 

Cabinet,  and  national  administration, 
126-145 ;  compared  with  English 
Cabinet,  126-127,  144-145;  attitude 
of  Constitutional  Convention  towards, 
127-128;  offices  established  by  Con- 
gress, 128 ;  qualifications  and  ap- 
pointment, 128-129 ;  powers  and 
functions,  129-139 ;  relation  to  Con- 
gress, 142-144. 

Cableman  v.  Peoria  R.  R.  Co.,  346  n. 

Calder  v.  Butt,  289  n. 

Calhoun,  J.  C.,  State  Papers  on  Nulli- 
fication, 211  n;  Disquisition  on 
Government,  392. 

California  v.  Central  Pacific  R.  R.  Co., 
283. 

Carpenter,  W.  S.,  Judicial  Tenure,  371  n. 

Carson,  H.  L.,  History  of  the  Supreme 
Court,  357  n. 

Catterall,  R.  C.  H.,  Second  Bank  of  the 
United  States,  238  n. 

Caucus,    in   the   Senate,    156-157;     be- 


ginnings of,  330-331 ;  legislative, 
331-332;  congressional,  332-333;  as 
means  of  nominating  in  states,  418. 

Chamberlin,  F.,  Philippine  Problem, 
383  n. 

Champion  v.  Ames,  250  n. 

Channing,  Edward,  History  of  the  United 
States,  2  n,  17  n,  318. 

Charities  and  corrections,  administra- 
tion of,  in  states,  453-454 ;  in  coun- 
ties, 552  ;  in  cities,  663. 

Charters,  city,  methods  of  granting, 
583-587. 

Child-labor,  under  Department  of  In- 
terior, 139  ;  control  of  Congress  over, 
250. 

Chisholm  v.  Georgia,  347  n,  360  n. 

Circuit  Court  of  Appeals,  370. 

Cities,  growth  of,  572-577 ;  periods  of 
development,  577-582 ;  granting  of 
charters  to,  582-587 ;  organization, 
588-601 ;  administration,  602-617  ; 
commission  and  city-manager  govern- 
ment in,  618-635. 

Citizens,  rights  of,  71-87 ;  who  are, 
71-78 ;  by  birth,  73-74  ;  by  naturali- 
zation, 74-78 ;  status  of  Porto  Ricans 
and  Filipinos  as,  75,  374-375 ;  privi- 
leges and  immunities,  78-83 ;  cor- 
porations as,  84 ;  duties,  85-87 ;  in 
connection  with  voting,  178-179. 

City  Council,  organization,  595-596 ; 
functions,  596-599 ;  place  of,  in 
American  government,  599. 

City-manager  plan  of  city  government, 
631-632. 

Civil  Service  Commission,  108,  141. 

Civil  service  system,  in  national  govern- 
ment, 108-109;  in  the  states,  439- 
441 ;  need  for,  to  offset  political 
machines,  481-482 ;  need  for,  in 
counties,  559 ;  lack  of,  in  appointing 
department  heads,  in  cities,  593-594 ; 
in  appointment  of  city  employees, 
599-600. 

Cleveland,  Grover,  Presidential  Prob- 
lems, 105  n. 

Coinage  and  currency,  supervision  by 
Treasury  Department,  135  ;  control  of 
Congress,  278-280;  kinds  in  United 
States,  280;  counterfeiting,  2S1. 

Coke,  Sir  Edward,  Institutes,  291  n. 

Collins,  C.  W.,  Fourteenth  Amendment 
and  the  States,  399  n. 

Colonies,  the  Thirteen,  government  of, 
2-13. 

Commerce,  federal  Department  of,  138. 

Commerce,  power  of  Congress  to  regu- 
late, under  the  Confederation,  21-22, 
246-247;  '  under  the  Constitution, 


INDEX 


639 


246-264;  what  commerce  is,  248- 
251 ;  interstate,  256-264. 

Commission  government,  in  cities,  be- 
ginnings of,  618-619  ;  Galveston  plan, 
619-621 ;  in  Des  Moines,  621-623 ; 
merits,  623-627 ;  defects,  627-631 ; 
improvements  effected  by  city-mana- 
ger plan,  631-632 ;  changes  caused 
by,  in  election  methods,  632-634. 

Committee,  National,  of  political  parties; 
334-338. 

Committee  of  the  Whole,  in  House  of 
Representatives,  200,  205. 

Committee  on  Rules,  in  House  of  Repre- 
sentatives, 197-198,  204. 

Committees,  in  the  Senate,  153-154 ; 
in  House  of  Representatives,  197-198, 
199-203;  of  Conference,  205-206; 
in  connection  with  appropriations, 
303-306;  in  political  parties,  334- 
338,  475-477,  483-484;  in  constitu- 
tional conventions,  410 ;  in  state 
legislatures,  423-424,  426-427. 

Commons,  J.  R.,  Proportional  Represen- 
tation, 634  n. 

Compromises,  in  connection  with  fram- 
ing the  Constitution,  33-35. 

Confirmation,  of  appointments,  federal, 
65,  106-108,  163-164 ;  in  states,  439. 

Congress,  powers  under  Confederation, 
15-16,  20-23,  209-210;  adjournment 
and  special  sessions,  112;  relation  of 
Cabinet  to,  142-144 ;  members  may 
not  be  impeached,  170 ;  power  of,  in 
general,  208-218;  to  tax,  219-232; 
to  borrow,  233-245 ;  to  regulate  com- 
merce, 246-264;  of  war,  265-276; 
over  naturalization  and  bankruptcy, 
277-278 ;  over  coinage  and  currency, 
278-280 ;  over  weights  and  measures, 
280-281 ;  over  post  offices,  281-283  ; 
to  grant  patents,  283-284;  to  es- 
tablish subordinate  courts,  284-285; 
as  to  the  high  seas,  285-286;  over 
the  capital,  286  ;  implied,  286  ;  limi- 
tations on,  288-298 ;  as  a  legislative 
body,  299-302 ;  inefficiency  in  public 
finance,  302-311 ;  controlled  by  par- 
ties, 340-341 ;  control  over  procedure 
of  federal  courts,  352-356  ;  control  over 
territories,  374-375. 

Constitution,  and  its  makers,  26-43 ; 
its  framing,  27-36;  ratification,  36- 
43 ;  as  supreme  law  of  the  land, 
44-56 ;  a  grant  of  powers,  45^47 ; 
division  of  powers  in,  47-52 ;  doc- 
trine of  judicial  supremacy  in,  52-53  ; 
limitations  on,  53-54 ;  few  innova- 
tions of,  54—56 ;  comparison  with 
English  constitution,  57-59  ;  develop- 


ment of,  57-70;  by  law,  59-60;  by 
judicial  interpretation,  60-64 ;  by 
usage,  64-67 ;  by  amendment,  67- 
69;  results  of,  69-70;  limitations 
on  powers  of  state  legislatures,  421. 

Constitutions,  state,  original,  17-19, 
404-407 ;  framing,  ratification,  and 
amendment  of  later,  408-412 ;  inter- 
pretation of,  412-414 ;  limitations 
on  powers  of  state  legislatures,  421- 
422  ;  need  for  changes  in,  523-524. 

Continental  Congresses,  11-12. 

Contract,  freedom  of,  292-293;  im- 
pairment of,  397-398. 

Convention,  Constitutional,  of  1787, 
proposal  for,  25 ;  organization  and 
members,  27-31 ;  work,  31-36  ;  rati- 
fication, 36-43. 

Conventions,  National,  93-95  ;  nominat- 
ing, 333,  418;  constitutional,  in 
states,  409-412;  party,  in  states, 
477-478. 

Cooley,  T.  M.,  Constitutional  Limitations, 
296  n,  353  n. 

Coroner,  555-556. 

Corwin,  E.  S.,  President's  Control  of 
Foreign  Relations,  111  n;  Doctrine  of 
Judicial  Review,  362  n. 

Cotton,  J.  P.,  Jr.,  ed.,  Constitutional 
Decisions  of  John  Marshall,  238  n, 
361  n. 

County  courts,  490-491,  554. 

County,  government  of,  in  the  colonies, 
537-539;  in  1860,  540-541;  what 
the  county  is,  546-547 ;  its  functions, 
547-548 ;  its  administration,  549-550  ; 
financial  duties,  550-551 ;  adminis- 
trative functions,  551-553 ;  judicial 
functions,  553-554 ;  its  various  offi- 
cials, 554-557 ;  need  for  reconstruc- 
tion, 558-559 ;  effect  on  other  local 
areas,  in  South  and  in  Far  West, 
569-571. 

Courtesy,  senatorial,  65,  106-108. 

Court  of  Claims,  371. 

Court  of  Customs  Appeals,  371. 

Coxe,  Brinton,  Judicial  Power  and  Un- 
constitutional Legislation,  362  n. 

Crandall,  S.  B.,  Treaties,  Their  Making 
and  Enforcement,  164  n. 

Cuba,  relation  to  the  United  States,  383. 

Cummings  v.  Missouri,  289  n. 

Curtis,  B.  R.,  Jurisdiction,  Practice  and 
Peculiar  Jurisprudence  of  the  Courts, 
345  n. 

Dallinger,     F.     W.,     Nominations     for 

Elective  Office,  93  n. 
Daniels,    W.    M.,    Elements    of    Public 

Finance,  460  n. 


640 


INDEX 


Dartmouth  College  v.  Woodward,  292, 
361  n,  397. 

Davis,  Jefferson,  Rise  and  Fall  of  the 
Confederate  Government,  212  n. 

Dayton,  Ohio,  city-manager  plan  in, 
631-632. 

Dealey,  J.  Q.,  Growth  of  American  State 
Constitutions,  405  n. 

Debt,  national,  233-245  ;  state,  469-472. 

Declaration  of  Independence,  13. 

Delegation  of  power,  legislative  and 
administrative,  296-298 ;  in  a  federal 
republic,  to  nation  and  to  subordinate 
communities,  391. 

Democratic  Party,  in  1789  (or  Anti- 
Federalist),  314-315;  in  1800  (or 
Republican),  316-318;  history  since 
1828,  318-321 ;  connection  with 
Tammany  Hall,  482. 

Departments,  federal,  heads  of,  129-131 ; 
their  work,  131-140. 

De  Saussure.  v.  Gaillard,  492. 

Des  Moines,  commission  government  in, 
621-623. 

Dewey,  D.  R.,  Financial  History  of  the 
United  States,  227  n. 

Dicey,  A.  V.,  Law  of  the  Constitution, 
46  n,  57. 

Dickinson,  G.  L.,  Development  of  Parlia- 
ment, 513. 

Dickinson,  J.  M.,  Special  Report  on  the 
Philippines,  383  n. 

Direct  legislation,  501-521 ;  definition, 
502  ;  not  a  novelty,  503  ;  reasons  for 
its  spread,  504-505  ;  mechanism,  505- 
508;  merits  and  defects,  508-518; 
the  recall,  518-521. 

District  attorney,  federal,  370. 

District  Courts,  370-371. 

District  of  Columbia,  control  of  Congress 
over,  286  ;  delegates  to  National  Con- 
vention, 334  ;  history  and  government, 
384-388. 

Division  of  powers,  in  first  state  con- 
stitutions, 18,  406;  in  the  Constitu- 
tion, 47-52  ;  Montesquieu's  views  on, 
47-51 ;  not  disturbed  by  development 
of  the  Constitution,  69-70 ;  in  relation 
to  Senate's  special  functions,  162- 
163 ;  merits  and  defects  in  state 
government,  524-526 ;  possible  al- 
ternatives for,  526-528. 

Dodd,  W.  F.,  Government  of  the  District 
of  Columbia,  384  n;  Revision  and 
Amendment  of  State  Constitutions, 
405  n. 

Dodds,  H.  W.,  Procedure  in  State  Legis- 
latures, 424  n. 

Dougherty,  J.  H.,  Electoral  System  of 
the  United  States,  93  n. 


Dred  Scott  v.  Sandford,  72,  365. 
Due  process  of  law,  291-294. 

Education,  supervision  of,  in  states,  455, 
543;  in  cities,  611-613. 

Edwards,  G.  J.,  The  Grand  Jury,  353  n. 

Efficiency,  federal  Bureau  of,  141. 

Election,  of  the  President,  64,  89-96 ; 
disputes  over,  90-92,  318;  of  Sena- 
tors, 147-152 ;  of  Representatives, 
182-185 ;  frequency  of,  and  party 
machines,  480-481;  of  judges,  494- 
496 ;  after  a  recall,  520 ;  supervision 
of  counties  over,  553 ;  need  for  reform 
of,  in  counties,  558-559 ;  effect  of 
commission  government  on  methods 
of,  632-634. 

Electorate,  effect  of  direct  legislation  on, 
510-511 ;  need  of  greater  enlighten- 
ment of,  533-534.  See  also  Suffrage. 

Electors,  of  the  President,  89-93,  95- 
96. 

Elliott,  Edward,  Biographical  Story  of 
the  Constitution,  27  n. 

Eminent  domain,  294-295. 

England,  control  over  the  American 
colonies,  5-8 ;  constitution,  57-58 ; 
cabinet  in,  compared  with  American, 
126-127,  144-145  ;  debates  in  parlia- 
ment compared  with  Senate,  155-156  ; 
residence  qualification  of  members  of 
parliament,  185  ;  comparison  of  House 
of  Commons  with  House  of  Represent- 
atives, 206-207,  300-302;  history  of 
common  law  in,  349 ;  origin  of  equity 
in,  351. 

Equity.     See  Law. 

Evans,  L.  B.,  Leading  Cases  on  American 
Constitutional  Law,  62  n ;  Writings  of 
Washington,  313  n. 

Executive.  See  President,  Senate,  Gov- 
ernor, Mayor. 

Executive  orders,  114-115. 

Ex  parte  Bollman,  290  n. 

Ex  parte  Jackson,  282  n. 

Ex  parte  Merryman,  365  n. 

Exports,  prohibition  of  tax  on,  222- 
223. 

Ex  post  facto  laws,  289,  396. 

Extradition,  402-403. 

Fairlie,  J.  A.,  National  Administration, 
127  n,  132  n;  '  Veto  Power  of  the 
State  Governor,'  437  n  ;  Local  Govern- 
ment in  Cities,  Towns,  and  Villages, 
535  n,  539  n,  540-541,  546  n,  554  n, 
558,  568  n. 

Far  rand,  Max,  Records  of  the  Federal 
Convention  of  1787,  27  n;  Framing 
of  the  Constitution,  27  n. 


INDEX 


641 


Federal  courts,  power  of  Congress  over 
subordinate,  284-285;  constitutional 
securities  for  fair  trial  by,  353-356 ; 
Supreme,  357-369  ;  subordinate,  369- 
371.  See  also  Judiciary,  Supreme 
Court. 

Federal  government,  powers  of,  45-47 ; 
democracy  of,  under  development  of 
the  Constitution,  70 ;  need  for  strong 
judiciary,  342 ;  place  of  states  in, 
389-403. 

Federal  Reserve  Board,  240-241. 

Federal  Trade  Commission,  140,  259- 
260. 

Federalist,  The,  48  n,  66  n,  116  n,  146, 
147,  148,  164,  169,  222  n,  246,  273, 
308,  311,  312  n,  344,  390;  as  letters 
of  "Publius,"  39  ;  value  of,  39-40. 

Federalist  party,  314-317. 

Federation,  of  the  colonies,  9-13. 

Field  v.  Clark,  297  n. 

Finance,  national,  part  of  Treasury 
Department  in,  133-134 ;  congres- 
sional methods  regarding,  302-311; 
state,  460-472;  municipal,  592,  597- 
598.  See  also  State  finance. 

Finley,  J.  H.,  and  Sanderson,  J.  F., 
American  Executive  and  Executive 
Methods,  433  n,  435  n. 

Fire  protection  and  prevention,  in  cities, 
607-608. 

Fish,  C.  R.,  Civil  Service  and  the  Patron- 
age, 110  n.  , 

Fisher,  S.  G.,  Evolution  of  the  Constitu- 
tion, 55  n. 

Fiske,  John,  on  the  gerrymander,  183  n. 

Flack,  H.  E.,  Adoption  of  Fourteenth 
Amendment,  398  n. 

Follett,  M.  R.,  Speaker  of  the  House  of 
Representatives,  193  n. 

Ford,  H.  J.,  Rise  and  Growth  of  American 
Politics,  158  n,  315  n,  474  n ;  Cost  of 
our  National  Government,  303  n. 

Ford,  P.  L.,  Pamphlets  on  the  Constitu- 
tion, 38  n ;  The  Federalist,  40  n. 

Foreign  affairs,  power  of  President  in, 
111-112  ;  in  relation  to  State  Depart- 
ment, 132-133 ;  in  connection  with 
Senate,  164-168. 

Foster,  Roger,  Commentaries  on  the 
Constitution,  44  n,  168  n,  209  n. 

Franklin,  Benjamin,  at  Albany  Con- 
gress, 10 ;  at  Constitutional  Conven- 
tion, 29,  30,  37. 

Gaffey,  F.  G.,  "Suffrage  Limitations  at 

the  South,"  80  n. 
Galveston,   commission  government  in, 

582,  618-621. 
Garner,  J.  W.,  Introduction  to  Political 

2T 


Science,  393  n;  "Executive  Participa- 
tion in  Legislation,"  434  n. 

Gerrymander,  183. 

Gibbons  v.  Ogden,  210,  248-249,  361  n. 

Gilbertson,  H.  S.,  County  Government, 
548  n. 

Glenn,  G.,  Army  and  the  Law,  271  n. 

Gompers  v.  United  States,  366. 

Goodnow,  F.  J.,  Politics  and  Adminis- 
tration, 340  n ;  Principles  of  Adminis- 
trative Law,  446  n ;  City  Government, 
574. 

Governor,  colonial,  6 ;  in  first  state 
constitutions,  17-18;  as  stepping- 
stone  to  presidency,  101 ;  history  of 
office,  431-432;  salary,  432;  elec- 
tion, 432  ;  removal,  432-433  ;  powers 
and  status,  433-444 ;  share  in  budget- 
making,  466-469 ;  proposed  recon- 
struction of  office,  527-529. 

Greene,  E.  B.,  Provincial  America,  3  n\ 
Provincial  Governor,  6  n,  431  n. 

Guam,  138,  383. 

Hadley,  A.  T.,  Education  of  the  American 
Citizen,  514  n. 

Hagood  v.  Southern,  348  n. 

Haines,  C.  G.,  American  Doctrine  of 
Judicial  Supremacy,  52  n,  362  n. 

Haines,  Lynn,  Your  Congress,  341. 

Hamilton,  Alexander,  at  Annapolis  Con- 
vention, 24-25 ;  at  Constitutional 
Convention,  28,  29-37;  in  The 
Federalist,  39-40;  on  terms  of  Sena- 
tors, 148 ;  as  Secretary  of  the  Treas- 
ury, 233-235,  245;  Report  on  Manu- 
factures, 252 ;  on  the  judiciary, 
344 ;  on  sovereignty  of  the  states, 
392  n. 

Hare,  J.  I.  C.,  American  Constitutional 
Law,  44  n. 

Harrison,  Benjamin,  This  Country  of 
Ours,  105  n. 

Hart,  A.  B.,  National  Ideals  Historically 
Traced,  55  n,  210  n.  See  also  Mc- 
Laughlin,  A.  C. 

Hatch,  L.  C.,  Administration  of  the 
American  Revolutionary  Army,  20  n. 

Hawaii,  status  of  citizens,  74 ;  govern- 
ment, 137,  376-377;  delegates  to 
National  Convention,  334,  to  Con- 
gress, 377. 

Hayes-Tilden  controversy,  91-92. 

Haynes,  G.  H.,  Election  of  Senator's, 
148  n;  Initiative  and  Referendum, 
501  n,  503  n,  507  n. 

Hepburn  v.  Griswold,  368  n. 

Hinds,  A.  C.,  Precedents  of  the  House  of 
Representatives,  192  n. 

Hinsdale,  B.  A.,  Old  Northwest,  372  n. 


642 


INDEX 


Hinsdale,  M.  L.,  History  of  the  President's 

Cabinet,  127  n, 
Hoar,  R.  S.,  Constitutional  Conventions, 

405  n. 
Holcombe,     A.     N.,     State    Government, 

421  n,  433  n,  489  n,  490  n. 
Holdsworth,    J.    T.,    First  Bank  of   the 

United  States,  236  n. 

Holmes,  O.  W.,  The  Common  Law,  350  n. 
Home  rule,  in  cities,  584-586. 
Hosmer,  J.  K.,  History  of  the  Louisiana 

Purchase,  374  n. 
Housing,  in  cities,  613. 
Houston,   D.   J.,   Nullification  in  South 

Carolina,  211  n. 
Houston  v.  Moore,  344  n. 
Howard,  G.  E.,  Local  Constitutional  His- 
tory, 535  n. 
Hughes,  R.  M.,  Handbook  of  Jurisdiction 

and  Procedure,  345  n. 
Hunt,    Gaillard,    Department    of    State, 

133  n ;  "Locating  the  Capital,"  385  n. 
Hurtado  v.  California,  293  n. 
Hylton  v.  United  States,  224  n. 

Immigration,  under  direction  of  De- 
partment of  Labor,  139 ;  control  of 
Congress  over,  255-256 ;  effect  of, 
on  cities,  575-576. 

Impeachment,  of  President,  124—125 ; 
power  of  Senate  over,  168 ;  of  House 
of  Representatives  over,  171 ;  origin 
and  procedure,  168-172 ;  instances, 
172-173;  of  state  governors,  432- 
433  ;  of  state  judges,  496-497. 

Implied  powers,  of  Congress,  under  the 
Constitution,  62-63,  213-215,  286. 

Incorporation,  of  areas  for  local  govern- 
ment, 542,  568-569. 

Initiative.     See  Direct  legislation. 

In  re  Debs,  122  n. 

Insular  Cases,  375  n. 

Insurance,  regulation  of,  in  states, 
449 ;  social,  453. 

Interior,  federal  Department  of,  137. 

Interpretation,  judicial,  of  the  Constitu- 
tion, 60-64  ;  in  states,  412-414. 

Interstate  Commerce  Commission,  140, 
256-259. 

Irvine  v.  Marshall,  346  n. 

Ives  v.  South  Buffalo  Ry.  Co.,  452  n. 

Jackson,  Andrew,  as  President,  100 ; 
'inaugurates  spoils  system,  109  ;  use  of 
veto,  117 ;  relation  to  Cabinet,  130  n ; 
attitude  towards  national  bank,  238 ; 
effect  of  election  as  President  on 
political  parties,  318-319. 

Jameson,  J.  A.,  Constitutional  Conven- 
tions, 405  n. 


Jay,  John,  in  The  Federalist,  39-40 ;  as 
Chief  Justice,  359-360. 

Jefferson,  Thomas,  election  of,  as  Presi- 
dent, 90-91,  96  n;  messages  to  Con- 
gress, 113  ;  on  the  powers  of  Congress, 
209 ;  as  leader  of  Democratic  party, 
in  1800,  316-317. 

Jenks,  J.  W.,  Principles  of  Politics,  186  n. 

Jones,  C.  L.,  Statute  Law  Making,  428  n. 

Judiciary,  colonial,  8 ;  doctrine  of  su- 
premacy of,  in  the  Constitution,  52- 
53,  342-343  ;  connection  with  naturali- 
zation, 75—77  ;  immunity  of  Executive 
from,  124-125 ;  necessity  for,  in  the 
government,  343-344  ;  sphere  of,  345- 
349  ;  law  and  equity  administered  by, 
349-352;  procedure,  352-356.  See 
also  Federal  Courts,  State  Courts, 
Supreme  Court. 

Judson,  F.  N.,  Judiciary  and  the  People, 
493  n,  494  n. 

Jury,  grand,  353  ;   petty,  353-355. 

Justice,  federal  Department  of,  137-138. 

Kales,    A.    M.,    Unpopular   Government, 

534. 
Kansas,  plan  for  reconstruction  of  state 

government  in,  527-528. 
Knox  v.  Lee,  368  n. 

Labor,  federal  Department  of,  139. 

Laughlin,  J.  L.,  History  of  Bimetallism 
in  the  United  States;  279  n. 

Law,  development  of  Constitution  by, 
59-60;  military,  270;  martial,  270- 
272 ;  and  equity,  of  the  United 
States,  349-352. 

Learned,  H.  B.,  The  President's  Cabinet, 
127  n. 

Legal  tender,  issue  over,  279-280. 

Legal  Tender  Cases,  279  n. 

Legislation,  powers  of  the  President  in 
connection  with,  112-121  ;  of  the 
Senate,  173-175 ;  of  the  House,  201- 
206;  of  Congress,  208-218;  delega- 
tion of  power  regarding,  296 ;  merits 
and  shortcomings  of  Congress  in,  299- 
311 ;  of  state  legislatures,  428-430.  . 

Legislatures,  colonial,  6-8 ;  state,  or- 
ganization of,  415—418;  nomination, 
418-419  ;  election,  419-420  ;  salaries, 
420  ;  sessions,  420  ;  powers,  421-422  ; 
procedure,  422 ;  officers  and  com- 
mittees, 422-423  ;  enactment  of  laws, 
425 ;  share  in  budget-making,  466- 
468 ;  in  relation  to  direct  legislation, 
504-505,  514-515;  proposed  recon- 
struction, 526-529 ;  control  over 
counties,  *  547.  See  also  Congress. 

Leisy  v.  Hardin,  262  n. 


INDEX 


643 


L' Enfant,  Pierre-Charles,  work  in  plan- 
ning Washington,  385. 

Lewis,  Lawrence,  History  of  the  Bank 
of  North  America,  235  n. 

Libby,  O.  S.,  Geographical  Distribution 
of  the  Vote  on  the  Federal  Constitution, 
41  n. 

Libraries,  public,  administration  of,  in 
cities,  612-613. 

Library  of  Congress,  141-142. 

Lieber,  F.,  Civil  Liberty  and  Self- 
Government,  353  n. 

Lien,  A.  J.,  Privileges  and  Immunities 
of  Citizens,  73  n. 

Limitations,  constitutional  theory  of, 
53-54 ;  on  the  powers  of  Congress, 
288-298;  on  the  states,  under  the 
Constitution,  396^403. 

Lobingier,  C.  S.,  People's  Law,  405  n, 
501  n. 

Local  government,  history  of,  in  the 
colonies,  8-9,  535-539,  577-578;  de- 
velopment since  the  Revolution,  539- 
541 ;  control  of  state  over,  541-545  ; 
in  counties,  546-559  ;  in  towns,  town- 
ships, and  villages,  560-571 ;  in  cities, 
572-635. 

Lodge,  H.  C.,  ed.,  Works  of  Alexander 
Hamilton,  235  n. 

Lowell,  A.  L.,  Public  Opinion  and 
Popular  Government,  326-327,  328, 
501  n,  513  n,  531-532. 

Lowrie,  S.  G.,  The  Budget,  466  n. 

Luther  v.  Borden,  365  n. 

Lutz,  H.  L.,  State  Tax  Commissions, 
456  n. 

McBain,    H.    L.,    Law   and   Practice   of 

Municipal  Home  Rule,  585  n. 
McCall,    S.    W.,    Business    of   Congress, 

189  n,   192  n. 
McClain,     Emlin,     Constitutional    Law, 

45   n,    263   n ;     Selection   of  Cases   on 

Constitutional  Law,  62  n. 
McConachie,  L.  G.,  Congressional  Com- 
mittees, 199  n. 
McCray  v.  U.  S.,  250  n. 
McCulloch  v.  Maryland,  214  n,  219  n, 

236-237,  361  n,  392. 
McDonagh,     Michael,    Speaker    of    the 

House,   193  n. 
MacDonald,    William,    Select    Charters, 

1606-1775,    4    n ;     Select    Documents, 

1776-1861,  15  n,  372  n. 
McGehee,    L.   P.,   Due  Process   of  Law 

under  the  Federal  Constitution,  292  n. 
MacGregor,   F.  H.,   City  Government  by 

Commission,  618  n. 
McKinley,  A.  E.,  Suffrage  Franchise  in 

the  Thirteen  Colonies,  6  n,  180  n. 


McLaughlin,  A.  C.,  Confederation  and 
the  Constitution,  15  n,  247  n ;  Courts, 
Constitution,  and  Parties,  362  n. 

McLaughlin,  A.  C.,  and  Hart,  A.  B., 
ed.,  Cyclopedia  of  American  Govern- 
ment, 45  n,  173  n,  179  n. 

McQuillin,  Eugene,  Law  of  Municipal 
Corporations,  547  n. 

Machine,  the,  in  political  parties,  480- 
487. 

Macy,  Jesse,  Party  Organization  and 
Machinery,  330  n,  337  n. 

Madison,  James,  at  Constitutional  Con- 
vention, 29-30,  37  ;  in  The  Federalist, 
39-40 ;  on  division  of  powers,  47, 
51;  on  national  bank,  235  n;  on 
state  executive,  435-436  n. 

Marbury  v.  Madison,  361  n. 

Marshal,  in  federal  District  Courts, 
370. 

Marshall,  John,  on  the  delegation  of 
powers,  210;  on  implied  powers, 
213-214;  on  power  to  tax,  219;  on 
the  power  to  charter  banks,  236- 
238 ;  as  Chief  Justice,  360-365. 

Maryland,  budget  system  in,  467. 

Mason,  E.  C.,  Veto  Power,  118  n. 

Massachusetts,  constitution,  404,  406 ; 
enactment  of  laws  in,  425-428;  or- 
ganization of  state  parties  in,  476 ; 
optional  charter  system  for  cities  in, 
586. 

Massachusetts  Constitutional  Conven- 
tion, Bulletins,  411  n,  416  n,  441  n, 
466  n,  472  n,  501  n,  519  n,  583  n, 
633  n,  634  n. 

Mathews,  J.  M.,  American  State  Ad- 
ministration, 433  n,  438  n,  446  n. 

Mayor,  election,  qualifications,  and 
salary,  589;  powers,  589-593. 

Merriam,  C.  S.,  Primary  Elections, 
418  n, 

Meyer,  E.  C.,  Nominating  Systems, 
93  n. 

Michael,  W.  H.,  History  of  the  Depart- 
ment of  State,  133  n. 

Militia,  control  of  Congress  over,  272- 
275 ;  supervision  of  states  over,  456- 
457. 

Minimum  wage  laws,  in  states,  452- 
453. 

Minor  v.  Happersett,  79  n,  395. 

Mississippi  R.  R.  Co.  v.  Wheeler,  84  n. 

Montesquieu,  on  the  division  of  powers, 
47-49;  The  Spirit  of  Laws,  48  n, 
55  n. 

Moore,  J.  B.,  Extradition  and  Interstate 
Rendition,  402  n. 

Moran,  T.  F.,  American  Presidents, 
100  n. 


644 


INDEX 


Morris,  Gouverneur,  in  revision  of 
Constitution,  31,  36. 

Municipal  administration,  branches  of, 
police,  602-607 ;  fire  protection,  607- 
608;  public  works,  608-610;  sani- 
tation, 610;  public  health,  610-611; 
education,  611-612;  libraries,  612- 
613  ;  poor  relief,  613  ;  housing,  613  ; 
recreation,  613-614 ;  regulation  of 
public  utilities,  614-617. 

Municipal  government,  in  the  Philip- 
pines, 382-383  ;  in  the  United  States, 
types  of,  588-589;  mayor,  589-593; 
heads  of  departments,  593-595 ;  city 
council,  595-599;  city  employees, 
599-600 ;  inefficiency  of,  600-601. 

Municipal  ownership,  615-617. 

Munro,  W.  B.,  Government  of  American 
Cities,  589  n,  623  n;  Municipal 
Administration,  602  n. 

Myers,  Gustavus,  History  of  Tammany 
Hall,  482  n. 

Naturalization,  by  statute  or  treaty, 
74-75 ;  by  judicial  process,  75-77 ; 
strictness  of  laws  for,  77 ;  rights 
conferred  by,  78;  power  of  Congress 
over,  277. 

Navy,  federal  Department  of  the,  138; 
history  of  the,  269. 

Neely  v.  Henkel,  365. 

Negro  suffrage,  79-80. 

Nereide,  The,  352. 

New  England  Confederation  of  1643, 
9-10. 

New  England.     See  Colonies. 

New  York  Constitutional  Convention, 
Index  Digest  of  State  Constitutions, 
405  n;  speech  of  Elihu  Root  at, 
509  n,  530. 

New  York,  organization  of  state  parties 
in,  475-476 ;  optional  charter  system 
for  cities  in,  586. 

Nomination,  of  candidates  for  Presi- 
dent, 93-95  ;  of  presidential  electors, 
95;  of  Congressmen,  183-184;  by 
caucus,  330-333 ;  in  conventions, 
333-334. 

Northern  Securities  Co.  v.  U.  S.,  260. 

Nullification,  and  secession,  211-213. 

Oberholtzer,  E.  P.,  Initiative,  Referendum, 

and  Recall,  501  n. 
Oleomargarine  case,  250  n. 
Ordinances,   powers   of   city   council   to 

enact,  596-597 ;   limitations  on,  597. 
Oregon,  plan  for  reconstruction  of  state 

government  in,  528. 
Original  Package  Case,  262-263. 
Origins,  English  and  colonial,  1-13. 


Orth,  S.  P.,  Boss  and  the  Machine,  480  n. 
Ostrogorski,  M.,  Democracy  and  Political 

Parties,    330   n ;     Democracy   and   the 

Party  System,  330  n,  331  n. 

Pacific  R.  R.  Co.  v.  Soule,  224  n. 

Panama  Canal  Zone,  136,  383. 

Pardons,  power  of  granting,  by  the 
President,  110;  by  state  governors, 

'    441^42. 

Parties,  political,  and  the  Constitution, 
65-66  ;  National  Conventions  of,  93  ; 
leadership  of,  by  President,  123-124, 
by  Speaker  of  the  House,  198-199,  by 
state  governors,  434-435 ;  influence 
in  Senate,  156-157 ;  strict  allegiance 
to,  in  Congress,  301-302,  in  states, 
474-475  ;  history,  in  national  govern- 
ment, 312-322  ;  definition,  322  ;  func- 
tions, 323-327 ;  two-party  system  in, 
328-329 ;  organization  and  methods, 
330-341,  in  states,  475-479;  absten- 
tion of  Supreme  Court  from,  364-365  ; 
activities  in  states,  473-474 ;  ma- 
chines, 480^85;  bosses,  485-487; 
relation  to  better  state  government, 
531-533. 

Patents,  control  of  Congress  over,  283- 
284,  283  n. 

Paterson  plan,  32. 

Pensacola  Tel.  Co.  v.  W.  U.  Tel.  Co., 
248  n. 

Philippine  Islands,  status  of  citizens, 
75,  375;  government,  136,  379-383; 
delegates  to  National  Convention, 
334,  to  Congress,  381. 

Phillips,  J.  B.,  Educational  Qualifications 
of  Voters,  80  n. 

Pierce,  William,  as  secretary  of  the 
Constitutional  Convention,  28  n. 

Platform,  party,  adoption  of,  by  National 
Convention,  334-335 ;  by  state  con- 
ventions, 478. 

Plehn,  C.  C.,  Public  Finance,  460  n. 

Police,  administration  of,  in  cities,  602- 
607. 

Police  court,  606-607. 

Police  power,  of  states,  in  relation  to 
interstate  trade,  262. 

Pollock  v.  Farmers1  Loan  and  Trust  Co., 
225  n. 

Pomeroy,  J.  N.,  Constitutional  Law  of 
the  United  States,  281  n. 

Poor  relief.     See  Charities. 

Porto  Rico,  status  of  citizens,  75,  375 ; 
government,  136,  377-379;  delegates 
to  National  Convention,  334,  to 
Congress,  379. 

Postal  power,  of  Congress,  281-283. 

Postmaster  General,  137. 


INDEX 


645 


Preferential  voting,  632-633. 

Presidency,  history  of,  100-102;  suc- 
cession to,  103-104. 

President,  discussion  of,  at  Constitu- 
tional Convention,  35-36,  88-89; 
election  of,  64,  69,  89-96;  appoint- 
ments of,  65,  106-110;  reelection, 
66;  messages,  67,  112-113;  inaugura- 
tion, 96  ;  choice  of  a,  97-100 ;  salary, 
103 ;  constitutional  qualifications, 
104  ;  powers  and  functions,  105-125  ; 
as  party  leader,  113-114,  123-124; 
veto  power,  115-121 ;  relation  to  the 
courts,  124-125 ;  relation  to  Cabinet, 
129-131 ;  influence  in  appropriations, 
306 ;  nomination  of  candidates  for, 
334. 

Primary,  presidential,  102-103;  direct, 
418-419. 

Privileges  and  immunities,  of  citizens, 
78-83 ;  not  extended  to  corporations, 
84 ;  of  Senators,  157 ;  protected  by 
Fourteenth  Amendment,  398-399. 

Progressive  party,  320. 

Prohibition  party,  321-322. 

Proportional  representation,  633-634. 

Prosecuting  attorney,  556-557. 

Protection,  equal,  of  the  laws,  as  pro- 
vided by  Constitution,  399-400. 

Public  Clearing  House  v.  Coyne,  282  n. 

Public  health  and  sanitation,  adminis- 

,  tration  of,  national,  135 ;  in  states, 
448;  in  cities,  610-611. 

Public  utilities,  regulation  of,  in  states, 
448-449  ;  in  cities,  614-617  ;  granting 
of  franchises  for,  in  cities,  598 ; 
municipal  ownership  of,  615—617. 

Public  works,  national,  supervision  of, 
by  War  Department,  135-136;  ad- 
ministration of,  by  counties,  551-552  ; 
in  cities,  608-610. 

Qualifications,  for  office.  See  several 
offices.  For  voting,  see  Suffrage. 

Randolph  plan,  31-32. 

Ray,  P.  O.,  Political  Parties  and  Practical 

Politics,  330  n,  335,  477  n,  485  n. 
Recall,  of  state  governors,  433 ;   of  state 

judges,  497-498 ;  of  judicial  decisions, 

498-49$;   in  general,  518-521. 
Recreation,  public,  in  cities,  613-614. 
Referendum.     See  Direct  legislation. 
Reform,  of  state  government,  522-534 ; 

in  city  government,  581-582. 
Registration  of  voters,  180. 
Reinsch,    P.    S.,    American   Legislatures 

and   Legislative  Methods,   421  n,  425. 
Removal,    by   the    President,    108-109; 

of  state  governors,  432-433;    of  state 


officials,  441 ;  of  state  judges,  496- 
498 ;  by  mayors,  592. 

Representation,  basis  of,  in  Congress, 
147;  in  Senate,  152;  in  House  of 
Representatives,  176-177,  181-182 ; 
redistricting  for,  182-183. 

Representatives,  House  of,  originates 
money  bills,  66 ;  power  over  treaties, 
167 ;  composition,  176-190 ;  original 
conception,  176-177 ;  elections  for, 
177-184 ;  qualifications  of  members, 
184-186 ;  proper  function  of  repre- 
sentatives, 186  ;  sessions,  187  ;  term, 
187-188;  debates,  188-190;  organi- 
zation and  methods,  191-207 ;  rules, 
191-192;  Speaker,  192-199;  com- 
mittees, 199-203  ;  procedure,  203-206  ; 
comparison  with  House  of  Commons, 
206-207  ;  influence  on  financial  policy, 
308 ;  delegates  from  territories  in,  377, 
379,  381. 

Republican  form  of  government,  guar- 
antees to  states  for,  394-395. 

Republican  party,  history  of,  318-321. 

Residence  requirement,  for  candidates 
in  American  legislatures,  184-185. 

Restraint  of  trade,  260-263. 

Robinson,  J.  H.,  Original  and  Derived 
Features  of  the  Constitution,  55  n. 

Rogers,  Lindsay,  Postal  Power  of  Con- 
gress, 282  n. 

Roosevelt,  Theodore,  Autobiography, 
105  n. 

Root,  Elihu,  Political  Addresses,  509  n ; 
at  New  York  Constitutional  Conven- 
tion, 530. 

Rose,  J.  C.,  "Negro  Suffrage,"  80  n. 

Rowe,  L.  S.,  United  States  and  Porto 
Rico,  378  n. 

Royce,  Josiah,  Philosophy  of  Loyalty, 
192  n. 

Russell,  E.  B.,  Review  of  American 
Colonial  Legislation,  7  n. 

Salary.     See  several  offices. 

Salmon,  Lucy  M.,  "Appointing  Power 
of  the  President,"  108  n. 

Samoa,  383. 

-Santo  Clara  Co.  v.  Southern  Pacific  Co., 
399  n. 

Scott,  W.  A.,  Repudiation  of  State  Debts, 
243  n. 

Secrist,  Horace,  Constitutional  Restric- 
tions upon  Public  Indebtedness,  469  n. 

Seligman,  E.  R.  A.,  Shifting  and  In- 
cidence of  Taxation,  220  n',  Income 
Tax,  226  n. 

Senate,  confirmation  of  presidential  ap- 
pointments, 65,  106-108,  163-164; 
in  connection  with  treaties,  111-112, 


646 


INDEX 


164-168;  organization,  146-161; 
original  conception  of,  147-149;  ses- 
sions, 152-153  ;  committees,  153-154 ; 
debates,  154-156 ;  place  in  American 
history,  157-160 ;  special  functions, 
163-173  ;  trial  of  impeachments,  168- 
172;  legislative  functions,  173-175; 
influence  on  financial  policy,  307-308. 

Separation  of  powers.  See  Division  of 
powers. 

Sere  v.  Pilot,  374  n. 

Sheriff,  554-555. 

Sherman  Anti-Trust  Act,  260-262. 

Simpson,  Alex.,  Jr.,  Federal  Impeach- 
qpents,  171  n. 

Slaughter  House  Cases,  83  n,  398. 

Smith,  Adam,  Wealth  of  Nations,  220  n. 

Socialist  party, '322. 

South  Carolina,  nullification  and  seces- 
sion in,  211-212. 

Sovereignty,  in  the  United  States,  392- 
394. 

Speaker,  of  House  of  Representatives, 
origin,  192;  office  in  England,  192- 
193 ;  development  in  America,  193- 
194 ;  choice  of,  194 ;  powers  of, 
194-199. 

Spoils  system,  109-110. 

Springer  v.  United  States,  225  n. 

Stamp  Act  Congress,  11. 

Stanwood,  Edward,  History  of  the  Presi- 
dency, 89  n,  317  n. 

Stare  decisis,  doctrine  of,  as  followed  by 
Supreme  Court,  368-369. 

State  administration,  443-459  ;  increase 
of  officials  in,  445-^47 ;  general,  447- 
448;  public  health,  448;  public 
utilities,  448-449 ;  banking  and  in- 
surance, 449-450 ;  industrial  affairs, 
450-453 ;  charities  and  corrections, 
453-454  ;  public  property,  454  ;  edu- 
cation, 455  ;  assessment  and  taxation, 
455-456 ;  regulation  of  professions, 
456 ;  military  affairs,  456-457 ;  mis- 
cellaneous, 457  ;  results  of,  457-459 ; 
need  for  consolidation,  529-531. 

State  courts,  relation  to  federal,  488 ; 
history,  488-490;  organization,  490- 
491 ;  supremacy,  491-493 ;  judges, 
493-498 ;  interpretation  of  laws,  498- 
499 ;  procedure  and  its  reform,  499- 
500. 

State,  federal  Department  of,  132-133. 

State  finance,  scope  of,  460-461 ;  reve- 
nues, 461^64;  expenditures,  464- 
469  ;  debt,  469-472 ;  need  for  change 
in  policy,  533. 

States,  early  constitutions,  17-19; 
powers  of,  under  the  Constitution, 
46 ;  woman  suffrage  in,  81  n ;  in- 


fluence in  choice  of  President,  98-99 ; 
suffrage  in,  178-180 ;  general  powers 
under  the  Constitution,  209-213; 
taxation  of  instrumentalities  of,  by 
Congress,  226-227;  taxation  of  na- 
tional banks  by,  237;  control  over 
interstate  commerce,  262-263 ;  trea- 
son in,  291 ;  due  process  of  law  in, 
293;  suability,  347-348;  jurisdic- 
tion of  federal  courts  over,  347-349 ; 
place  of,  in  the  nation,  389-403; 
federal  guarantees  to,  395-396;  pro- 
hibitions on,  400-403;  constitutions, 
404-414 ;  legislatures,  415^30  ;  gov- 
ernors, 431-444 ;  administrative 
officers,  445-459;  finance,  460-472; 
parties  and  practical  politics,  473- 
487;  courts,  488-500;  direct  legis- 
lation and  recall,  501-521 ;  recon- 
struction of  government  in,  522-534 ; 
supervision  over  local  governments, 
541-545 ;  interference  in  city  affairs, 
580-581. 

Stevens,  C.  E.,  Sources  of  the  Constitu- 
tion, 55  n. 

Story,  Joseph,  Commentaries  on  the 
Constitution,  44  n,  345  n ;  as  Associate 
Justice,  367. 

Streets,  administration  of,  in  cities, 
planning,  608-609;  paving,  609-610. 

Suffrage,  colonial,  6  ;  widening  of,  under 
English  and  American  constitutions, 
'58-59 ;  relation  to  citizenship,  78-82  ; 
negro,  79-80;  woman,  80-82;  at 
congressional  elections,  177—178 ;  ex- 
tension of,  178-180;  in  Hawaii,  376; 
in  Porto  Rico,  379  ;  in  the  Philippines, 
381. 

Supreme  Court,  provision  for,  in  Con- 
stitution, 52-53  ;  its  power  to  declare 
laws  unconstitutional,  59,  362—364 ; 
interpretation  of  Constitution  by, 
60-64;  its  working,  357-359;  its 
history,  359-367;  official  reports, 
359  n',  precedents  followed  by,  367- 
369 ;  decisions  as  to  control  over 
territories,  375. 

Swayze,  F.  J.,  "Judicial  Construction 
of  the  Fourteenth  Amendment," 
399  n. 

Taft,  W.  H.,  Our  Chief  Magistrate  and 

His    Powers,    105    n,    117  n,   237    n; 

Special    Report    on    the    Philippines, 

383  n. 

Tammany  Hall,  482-485. 
Taney,  Roger  B.,  as  Chief  Justice,  365. 
Tariff,  the,  251-254 ;    Commission,  140- 

141,  254-255;    as  a  party  issue,  319- 

320. 


INDEX 


647 


Taussig,  F.  W.,  Tariff  History,  252  n\ 
Silver  Situation,  279  n. 

Tax  Collector  v.  Day,  227  n. 

Taxation,  power  of,  in  the  colonies,  7, 
8 ;  under  Articles  of  Confederation, 
15-16,  20-21 ;  under  the  Constitu- 
tion, by  Congress,  219-232  ;  by  states, 
461—164 ;  by  counties,  550-551 ;  in 
cities,  597-598. 

Taxes,  definition,  219-220;  essentials, 
220;  classification,  220-221;  limita- 
tions on  levy  by  Congress,  221-227; 
direct,  224-225;  income,  225-226, 
464  ;  corporation,  226,  264 ;  war,  228- 
229;  collection  of,  231-232;  general 
property,  461 ;  classification  of  prop- 
erty for,  461-462 ;  on  intangible 
property,  462 ;  assessment  for,  463 ; 
inheritance,  463-464  ;  poll,  464. 

Territories,  government  of,  136,  137, 
372-388. 

Texas  v.  White,  366. 

Thayer,  J.  B.,  Cases  in  Constitutional 
Law,  62  n',  John  Marshall,  362  n  ; 
American  Doctrine  of  Constitutional 
Law,  362. 

Thompson,  C.  S.,  Rise  and  Fall  of  the 
Congressional  Caucus,  333  n, 

Thorpe,  F.  N.,  Federal  and  State  Con- 
stitutions, 405  n. 

Tiedeman,  C.  G.,  Unwritten  Constitution, 
64  n. 

Tocqueville,  Alexis  de,  Democracy  in 
America,  158-159  n. 

Towns,  government  of,  in  the  colonies, 
536-537 ;  relation  to  state  govern- 
ment, 560-561 ;  in  New  England, 
561-567;  town  meeting,  562-564; 
selectmen  and  officials,  564-566 ; 
criticism  of,  566-567 ;  in  north  and 
central  states,  567-569;  in  South, 
569-570;  in  Far  West,  570-571. 

Treason,  289-291. 

Treasury,  federal  Department  of,  133- 
135 ;  relation  to  estimates  in  appro- 
priations, 303. 

Treaties,  power  over,  of  President,  111- 
112;  of  Senate,  164-167;  of  House 
of  Representatives,  167 ;  and  secret 
diplomacy,  167-168. 

Tucker,  J.  R.,  Constitution  of  the  United 
States,  44  n. 

Twining  v.  New  Jersey,  291. 

Unconstitutionality,  of  laws,  federal,  59, 
362-364 ;  state,  498-499. 

United  States,  "Report  on  Citizenship 
of  the  United  States,"  74  n;  Tenure 
of  Office  Act,  109  n ;  National  Bank- 
ing Act  of  1913,  238-239;  Federal 


Reserve  Act,  240 ;  National  Defence 
Act  of  1916,  267  n,  274  n;  Manual 
for  Courts-Martial,  271  n ;  Report  of 
the  President's  Commission  on  Economy 
and  Efficiency,  309  n;  Judiciary  Act 
of  1789,  343,  369,  493  n ;  Foraker  Act, 
378;  Philippine  Civil  Government 
Act,  380 ;  Comparative  Financial 
Statistics  of  Cities  under  Council  and 
Commission  Government,  626  n. 
United  States  v.  Knight,  249  n,  260  n. 

Van  Dyne,  F.,  Citizenship  of  the  United 
States,  74  n. 

Veazie  Bank  v.  Fenno,  224  n. 

Veto  power,  of  colonial  governors,  7 ;  of 
President,  115-119;  frequency  of  use 
by,  117-118;  pocket,  118-119,  in 
states,  436-437;  merits  and  defects 
of,  119;  limitations  on,  120-121;  of 
state  governors,  435-438 ;  of  mayors, 
590-591. 

Vice-President,  election  of,  89-96;  suc- 
cession to  presidency,  103-104 ;  pur- 
pose of  office,  104  ;  qualifications  for, 
104;  in  the  Senate,  152-153;  in 
impeachments,  172;  nomination  of 
candidates  for,  334. 

Virgin  Islands,  138,  383. 

War,  federal  Department  of,  135-136. 

War,  powers  in  relation  to,  under  the 
Confederation,  22-23 ;  exercised  by 
the  President,  121-122 ;  of  Congress, 
265-276 ;  of  state  governors,  442. 

Washington,  city  of.  See  District  of 
Columbia. 

Washington,  George,  on  defects  of  the 
Confederation,  22,  23 ;  presiding  at 
Constitutional  Convention,  29 ;  atti- 
tude toward  political  parties,  313- 
315. 

Weber,  A.  F.,  Growth  of  Cities, 
573  n. 

Webster,  Daniel,  on  due  process  of  law, 
292. 

Western  Union  Tel.  Co.  v.  Call  Publish- 
ing Co.,  352  n. 

Whig  party,  318-319. 

Wilcox,  D.  F.,  Government  by  All  the 
People,  501  n. 

Willoughby,  W.  F.,  Territories  and  De- 
pendencies, 373-374,  383  n. 

Willoughby,  W.  W.,  Constitutional  Law 
of  the  United  States,  44  n,  209  n, 
288  n,  345  n ;  Constitutional  Law, 
44  n ;  Supreme  Court,  357  n ;  Amer- 
ican Constitutional  System,  370  n. 

Wilson  Act,  263. 

Wilson,  Woodrow,  Constitutional  Govern- 


648 


INDEX 


ment,  100  n,  102  n,  105  n,  124  n,  160- 
161,  363;  Congressional  Government, 
430. 

Wise,  J.  S.,  Treatise  on  American  Citizen- 
ship, 74  n. 

Woodburn,  J.  A.,  The  American  Republic, 
198  n,  218  n;  Political  Parties, 
315  n. 


Woodruff,    C.   R.,    City   Government   by 

Commission,  618  n. 
Woman  suffrage,  80-82. 
Worcester,  D.  C.,  The  Philippines,  383  n. 
Workmen's  compensation  laws,  in  states, 

451-452. 

Yick  Wo  v.  Hopkins,  400. 


Printed  in  the  United  States  of  America. 


'"PHE    following    pages    contain    advertisements    of 
books  by  the  same  author  or  on  kindred  subjects. 


BY  THE  SAME  AUTHOR 

Principles  and  Methods  of 
Municipal  Administration 


8vo,  491  pages, 


Professor  Munro's  new  volume  deals  with  the  ac- 
tual administrative  functions  of  the  city,  thus  sup- 
plementing his  earlier  volumes  on  the  structure 
of  city  government  in  Europe  and  America.  It 
includes  chapters  on  such  important  fields  of  day- 
to-day  municipal  work  as  city  planning,  street  ad- 
ministration, water  supply,  sanitation,  police,  fire 
protection,  public  lighting,  school  management,  and 
municipal  finance.  In  each  chapter  there  is  a  good 
deal  more  than  a  mere  survey  of  the  subject,  yet 
everything  is  discussed  in  a  non-technical  way.  The 
author's  aim  has  been  to  show  in  an  accurate  and 
interesting  way  just  how  the  city  departments  are 
organized  for  their  work,  what  problems  they  have 
to  face,  and  how  they  try  to  meet  these  problems. 
In  a  word,  he  deals  very  fully  with  what  may  be 
called  the  mechanics  of  present-day  city  govern- 
ment, and  that  is  the  phase  of  the  subject  which 
requires  most  attention  to-day. 


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The  Government  of  European  Cities 

Cloth,  8vo,  $2.00 

"  The  book  gives  a  detailed  account  of  the  way  in  which  municipal 
government  is  formed  and  carried  on  in  France,  Germany,  and  Eng- 
land. The  style  is  clear,  straightforward,  and  unpretentious,  and  the 
treatment  is  steadily  confined  to  the  subject  in  hand  without  any  at- 
tempt to  point  a  moral  or  aid  a  cause.  The  writing,  while  succinct,  is 
copious  in  detail,  and  only  administrative  experts  in  the  countries  re- 
spectively considered  could  check  off  all  the  statements  made ;  but  the 
work  itself  affords  intrinsic  evidence  of  its  painstaking  accuracy." 

—  The  Nation. 

"  On  the  whole  the  most  comprehensive,  accurate,  painstaking  and 
thorough  work  which  has  been  done  in  the  English  language  on  the  sub- 
jects which  are  treated.  The  objectiveness  of  the  treatment  and  the  co- 
pious references  to  the  sources  of  his  information  give  what  Dr.  Munro 
has  done  an  authoritativeness  as  to  descriptive  details  which  no  other 
book  on  the  subject  possesses." 

—  FRANK  J.  GOODNOW  in  Political  Science  Quarterly. 

"  The  work  as  a  whole  reflects  the  greatest  credit  upon  the  author. 
For  thoroughness,  fairness,  scope,  and  breadth  of  treatment  it  leaves 
nothing  to  be  desired.  It  is  conceived  in  the  scientific  spirit,  and  aims 
to  present  facts  accurately  and  to  indicate  their  possible  bearings ;  but 
it  betrays  no  partisan  spirit,  and  is  not  given  to  preaching  or  the  further- 
ance of  a  cause.  It  will  rank  as  a  standard  work,  embodying  the  best 
scholarship  of  our  day."  —  New  York  Tribune. 

"Das  Buch  von  Professor  Munro  ist  im  wesentlichen  beschreibender 
Natur ;  die  Kritik  tritt  in  ihm  stark  zurlick.  Man  merkt  der  Darstellung 
an,  das  der  Verfasser  sich  sehr  eingehend  mit  dem  Gegenstand  vertraut 
gemacht  hat  und  so  ist  ihm  in  der  Tat  die  sehr  schwere  Aufgabe  ge- 
lungen,  selbst  von  den  verwickelten  Verhaltnissen  der  preussischen 
Stadteverwaltung  ein  klares  Bild  zu  entwerfen." 

—  Kommunalen  Praxis  (Berlin) . 

"A  sound  contribution  to  the  study  of  local  government." 

—  Local  Government  Review  (London) . 


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The  Government  of  American  Cities 

New  and  Revised  Edition,  8vot  $2.00 

In  an  age  when  men  appear  far  too  ready  to  proceed 
with  a  diagnosis  and  to  prescribe  remedies  without  much 
preliminary  study  of  the  anatomy  and  the  physiology  of 
city  government,  too  much  stress  upon  the  importance  of 
the  latter  branches  of  the  subject  can  scarcely  be  laid.  At 
any  rate  we  have  heard  so  much  in  recent  years  concern- 
ing what  the  government  of  American  cities  ought  to  be 
that  an  apology  is  hardly  necessary  for  the  emphasis  which 
this  volume  places  upon  what  their  government  really  is. 

The  book  deals  with  government  rather  than  with  ad- 
ministration, with  the  framework  rather  than  with  the 
functioning  mechanism  of  the  municipal  organization. 

The  author  discusses  in  his  later  chapters  those  phases 
of  city  government  which  at  the  present  moment  are  arous- 
ing the  liveliest  interest  among  all  good  citizens,  with  the 
desire  and  expectation  that  the  resulting  criticisms,  both 
favorable  and  unfavorable,  of  his  views  will  result  in  awak- 
ening those  citizens  who  earnestly  desire  civic  betterment 
to  a  realization  of  the  necessity  for  a  well-organized  con- 
centration of  effort,  backed  by  a  serious  study  of  the  prin- 
ciples of  municipal  government. 

"  The  Government  of  American  Cities "  provides  an 
introduction  to  the  study  of  a  very  large  and  important 
subject.  For  use  in  a  college  course  in  municipal  govern- 
ment, "  Principles  and  Methods  of  Municipal  Administra- 
tion "  is  an  excellent  book  for  supplementary  reading,  as 
is  also  "The  Government  of  European  Cities,"  by  the 
same  author. 


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Publishers  64-66  Fifth  Avenue  New  York 


*A    WORK    UPON    WHICH    WE    CAN    UNRESERVEDLY    CONGRATULATE    THE    AUTHOR 
AND  HIS  COUNTRY."  —  The  AthencBum,  London. 


The  Government  of  England 

BY   A.    LAWRENCE    LOWELL 

President  of  Harvard  University :  Formerly  Professor  of  the  Science  of  Government, 
Author  of  "  Colonial  Civil  Service,"  etc. 

In  two  volumes.    Bound  in  the  style  of  Bryce's  "  American  Commonwealth." 

Cloth,  8vo,  $4 
The  New  York  Sun.  calls  it :  — 

"The  remarkable  work  which  American  readers,  including  even  those  who 
suppose  themselves  to  be  pretty  well  informed,  will  find  indispensable.  .  .  . 
it  deserves  an  honored  place  in  every  public  and  private  library  in  the  American 
Republic."  — M.  W.  H. 

"Professor  Lowell's  book  will  be  found  by  American  readers  to  be  the  most 
complete  and  informing  presentation  of  its  subject  that  has  ever  fallen  in  their 
way.  .  .  .  There  is  no  risk  in  saying  that  it  is  the  most  important  and  valuable 
study  in  government  and  politics  which  has  been  issued  since  James  Bryce's 
'American  Commonwealth,'  and  perhaps  also  the  greatest  work  of  this  character 
produced  by  an  American  scholar."  —  Philadelphia  Public  Ledger. 

"It  is  the  crowning  merit  of  the  book  that  it  is,  like  Mr.  Bryce's,  emphatically 
a  readable  work.  It  is  not  impossible  that  it  will  come  to  be  recognized  as 
the  greatest  work  in  this  field  that  has  ever  been  produced  by  an  American 
scholar."  — Pittsburgh  Post. 

"  The  comprehensiveness  and  range  of  Mr.  Lowell's  work  is  one  of  the  reasons 
for  the  unique  place  of  his  '  Government  of  England  '  —  for  its  place  in  a  class  by  it- 
self, with  no  other  books  either  by  British  or  non-British  authors  to  which  it  can  be 
compared.  Another  reason  is  the  insight,  which  characterizes  it  throughout,  into 
the  spirit  in  which  Parliament  and  the  other  representative  institutions  of  England 
are  worked,  and  the  accuracy  which  so  generally  characterizes  definite  statements ; 
all  contribute  to  make  it  of  the  highest  permanent  value  to  students  of  political 
science  the  world  over."  —  EDWARD  PORRITT  in  The  Forum. 


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State  Government  in  the  United  States 

By  ARTHUR   N.  HOLCOMBE 

Associate  Professor  of  Government  in  Harvard  University 


This  book  is  designed  to  furnish  a  critical  analysis 
of  the  principles  of  state  government  in  the  United 
States.  Beginning  with  a  statement  of  the  principles 
upon  which  the  governments  of  the  original  states  were 
established,  it  explains  how  the  original  forms  of  gov- 
ernment have  developed  in  response  to  changing  condi- 
tions, how  the  present  state  governments  are  meeting 
present  needs,  and  concludes  with  a  brief  consideration  of 
some  of  the  contemporary  plans  for  further  reform. 
Why  should  we  change  our  form  of  government?  Has 
the  time  come  for  discarding  the  eighteenth  century 
doctrine  of  the  division  of  powers?  These  are  some  of 
the  more  fundamental  questions  to  which  the  book  at- 
tempts to  give  an  answer.  But  the  book  is  not  solely 
concerned  with  the  political  philosophy  of  American  state 
government.  It  also  treats  of  the  more  practical  problems 
arising  out  of  the  growth  of  the  functions  of  the*  modern 
state  and  the  increase  of  its  administrative  activities. 


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